Planning the Future of Cross Border Families: A Path Through Coordination 9781509919864, 9781509919895, 9781509919888

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PLANNING THE FUTURE OF CROSS BORDER FAMILIES This book is built upon the outcomes of the EUFam’s Project, financially supported by the EU Civil Justice Programme and led by the University of Milan. Fellow ­partners include the Universities of Heidelberg, Osijek, Valencia and Verona, the MPI in Luxembourg, the Italian and Spanish Family Lawyers Associations and training academies for judges in Italy and Croatia. The book seeks to offer an exhaustive overview of the regulatory framework of private international law in family and succession matters. The book addresses current features of the Brussels IIa, Rome III, Maintenance and Succession Regulations, the 2007 Hague Protocol, the 2007 Hague Recovery Convention and new Regulations on Property Regimes. The contributions are authored by more than 30 experts in cross-border family and succession matters. They introduce social and cultural issues of crossborder families, set up the scope of all EU family and succession regulations, examine rules on j­urisdiction, applicable law and recognition and enforcement regimes and focus on the current problems of EU family and succession law (lis pendens in third States, forum necessitatis, Brexit and interactions with other legal instruments). The book also contains national reports from six Member States and annexes of interest for both legal scholars and ­practitioners (policy guidelines, model clauses and protocols). Volume 29 in the series Studies in Private International Law

Studies in Private International Law Recent titles in the series Australian Private International Law for the 21st Century: Facing Outwards Edited by Andrew Dickinson, Thomas John and Mary Keyes Maintenance and Child Support in Private International Law Lara Walker The Choice of Law Contract Maria Hook The Nature and Enforcement of Choice of Court Agreements: A Comparative Study Mukarrum Ahmed Cross-Border Litigation in Europe Edited by Paul Beaumont, Mihail Danov, Katarina Trimmings and Burcu Yuksel Forum (Non) Conveniens in England: Past, Present, and Future Ardavan Arzandeh Commercial Issues in Private International Law: A Common Law Perspective Edited by Vivienne Bath, Andrew Dickinson, Michael Douglas and Mary Keyes Jurisdiction and Cross-Border Collective Redress: A European Private International Law Perspective Alexia Pato Rethinking Judicial Jurisdiction in Private International Law Milana Karayanidi Economic Sanctions in EU Private International Law Tamás Szabados Clawback Law in the Context of Succession Jayne Holliday Place of Performance: A Comparative Analysis Chukwuma Okoli Private International Law in Nigeria Chukwuma Okoli and Richard Oppong

Planning the Future of Cross Border Families A Path Through Coordination

Edited by

Ilaria Viarengo and

Francesca C. Villata

HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK 1385 Broadway, New York, NY 10018, USA HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2020 Copyright © The editors and contributors severally 2020 The editors and contributors have asserted their right under the Copyright, Designs and Patents Act 1988 to be identified as Authors of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/doc/ open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2020. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication data Names: Viarengo, Ilaria, editor.  |  Villata, Francesca Clara, editor. Title: Planning the future of cross border families : a path through coordination / edited by Ilaria Viarengo and Francesca Villata. Description: Oxford, UK ; New York, NY : Hart Publishing, Bloomsbury Publishing Plc, 2020.  |  Series: Studies in private international law ; volume 29  |  Includes bibliographical references and index. Identifiers: LCCN 2020018238 (print)  |  LCCN 2020018239 (ebook)  |  ISBN 9781509919864 (hardcover)  |  ISBN 9781509919888 (ePDF)  |  ISBN 9781509919871 (EPub) Subjects: LCSH: Conflict of laws—Domestic relations—European Union countries.  |  Conflict of laws— Parent and child—European Union countries.  |  European Court of Human Rights.  |  Freedom of movement—European Union countries.  |  Emigration and immigration law—European Union countries. Classification: LCC KJE983.F35 P53 2020 (print)  |  LCC KJE983.F35 (ebook)  |  DDC 346.2401/5—dc23 LC record available at https://lccn.loc.gov/2020018238 LC ebook record available at https://lccn.loc.gov/2020018239 ISBN: HB: 978-1-50991-986-4 ePDF: 978-1-50991-988-8 ePub: 978-1-50991-987-1 Typeset by Compuscript Ltd, Shannon

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FOREWORD FAUSTO POCAR Professor Emeritus of International Law, University of Milan

At the conclusion of the Treaty of Amsterdam, which gave the EU institutions general competence to legislate on private international law, the number of EU Regulations and other acts that have been adopted in family matters appears to be prodigious. This is possibly due to the absence of appropriate legislation in previous decades – notwithstanding that legal literature had sometimes pointed out that family matters were intimately linked to the free movement of persons – or rather by the increasing need for adopting a uniform legal framework to regulate the issues of jurisdiction and applicable law arising out of a European society comprising persons with different nationalities, cultures and religions. The creation of such a legal framework inevitably entailed difficult issues in establishing the appropriate solutions for a complex scenario, as it was perceived by the legislature that some corrections in the regulations was necessary. But especially it entails numerous problems at the level of judicial application in the Member States. On one hand, the regulations are of immediate application and must be observed in all their elements. On the other hand, domestic legislation may prevent their application in a sensitive field such as family law, and limit as much as possible the scope of derogation in favour of EU law. The frequency of preliminary rulings of the EU Court of Justice, and the variety of a rich domestic jurisprudence are the result. Both are critical to assess the effectiveness of the EU framework, as well as its meaning and suitability to meet the needs of families’ life and integration in the context of the EU. While many writings on EU family law have appeared in legal literature in recent years, and commentaries on the regulations have been published in legal journals, the merit of this collection of contributions – which is the outcome of a research project financed by the EU Commission – lies in its systematic and comprehensive approach. The aim of the volume is to address all the complex features of the EU unification of private international law in family matters. On one hand, the volume seeks to clarify the level and the effectiveness of the harmonisation reached through the EU legislation. And on the other hand, the volume strives to offer an in-depth analysis and commentary which may indicate ways to proceed in future efforts to improve such legislation. From this perspective, the chapters of the book, which address the different features of family relations, contain a critical comment of the existing legislation in light of the problems that arose in the case law of the EU Court of Justice and in the d ­ omestic jurisprudence of several selected Member States. The specific conclusions of each chapter and the general conclusions of the research offer significant contributions that deserve to be taken into account for future legislative work in the complex and changing cultural scenarios that characterise family relations in Europe.

vi

SERIES EDITOR’S PREFACE This is a substantial edited collection that covers almost all aspects of EU Private International Law of Family Law and the EU Succession Regulation. It makes excellent use of the primary research done for the EU Commission between 2015 and 2017 in the EUFam project. That research produced a rich database of EU private international law of family and succession case-law which is referred to in many of the chapters, both cross-cutting EU-wide and national. The writers, editors and Hart Publishing are to be commended on the high standard of English throughout this book. There are many highlights in the book. The long chapter by Francesca Clara Villata and Lenka Válková on Choice-of-Court and Choice-of-Law Clauses is excellent, fully up to date and of great practical utility. Practitioners and students will find the model clauses and examples extremely helpful in understanding the possibilities that EU Private International Law on the family and on succession provide for party autonomy. Although most of the fields of family law that are covered by EU private international law legislation are thoroughly analysed in the book, the slightly surprising exception is child abduction. There is a useful confirmation by Thomas Pfeiffer, Mirjam Escher and Josef Wittmann (at 318) that the override mechanism in Article II(6)–(8) of Brussels IIa ‘is only infrequently used and largely ineffective’ (see on this Paul Beaumont, Lara Walker and Jayne Holliday, ‘Conflicts of EU courts on child abduction: the reality of Article 11(6)–(8) Brussels IIa proceedings across the EU’ (2016) 12 Journal of Private International Law 211–260). Patrick Kinsch’s chapter on human rights does highlight the discrepancy between the approach of the European Court of Human Rights and the CJEU in the context of intra-EU child abduction cases. The situation arises when a court in an EU Member State is dealing with the recognition and enforcement of a judgment, by the courts of the habitual residence of the child in another EU Member State, which has the effect of overriding the non-return order, based on Article 13 of the Hague Child Abduction Convention, made in the courts of the State where recognition and enforcement is being sought in a child abduction case. The CJEU in its case law to date believes that any human rights exception to the absolute duty of the court to recognise and enforce the judgment can only arise if there is a ‘systemic’ failure to comply with human rights in the Member State from which that judgment originates. The ECtHR believes that the duty to protect the human rights of the child goes beyond systemic failures to include ‘manifest ­deficiencies’ in the protection of human rights in the State of origin in the individual case. Kinsch rightly urges the CJEU to align its case law with that of the ECtHR as soon as it is given an opportunity to do so. The human rights problem

viii  Series Editor’s Preface with EU law in this field was noted with appropriate references by Beaumont et al, ibid, 249 at n 162, and the possibility that the ECtHR might change its deferential case law towards EU law after Opinion 2/13 was canvassed. Kinsch shows that in Avotiņš v Latvia and subsequent cases that deference towards EU law has indeed been reduced in order to try to secure appropriate human rights protection for violations of the human rights of one individual in an intra-EU case. The limits of party autonomy in parental responsibility cases have recently been slightly modified by the Brussels IIb Regulation (often called Brussels IIter in this book), ie Regulation 2019/1111, in Article 10. In relation to family agreements in the course of a child abduction case, Recital 22 helpfully states that: Member States which have concentrated jurisdiction should consider enabling the court seised with the return application under the 1980 Hague Convention to exercise also the jurisdiction agreed upon or accepted by the parties pursuant to this Regulation in matters of parental responsibility where agreement of the parties was reached in the course of the return proceedings. Such agreements should include agreements both on the return and the non-return of the child.

Recital 23 also clarifies that the parties can choose any court which has a ‘substantial connection’ with the parental responsibility case because the list of factors creating a substantial connection in Article 10(1)(a), though now expanded, is still not exhaustive. The chapter on ‘Finding Habitual Residence’ by Thalia Kruger makes excellent use of the EUFam database as well as taking full account of CJEU case law and academic analysis on the EU view of habitual residence. It is very helpful and insightful and should be read by anyone wanting to understand the concept. Perhaps inevitably, given the context of the EUFam project, the focus of the chapter is on EU sources. It would be good if in the future these EU funded projects set EU Law concepts which are derived from or part of international law into the context of the global debate on their meaning. ‘Habitual residence’ is a universal concept established in Hague Conventions, notably on child abduction, and there are different theoretical approaches to its meaning (parental intent, child-centred and the now almost universally accepted middle way of the hybrid approach) which are discussed by academics and in case law outside the EU, notably the Canadian Supreme Court in Office of the Children’s Lawyer v Balev 2018 SCC 16. Habitual residence in child abduction cases deserves to have a global uniform interpretation which cannot just be whatever the CJEU thinks it should mean (­ invariably without paying any attention to case law and analysis from outside the EU). In the recent decision of the US Supreme Court on the issue in Monasky v Taglieri, judgment of 25 February 2020. Ginsburg J, giving the Opinion on the matters discussed here of eight of the nine members of the Court (Thomas J gave a separate opinion giving less weight to judgments of courts in other Contracting States), shows the internationalist approach to arriving at uniform interpretation of ‘habitual residence’ in the Hague Child Abduction Convention. She refers to the Perez-Vera official explanatory report on the Convention and concludes that what constitutes ‘habitual’ residence necessitates a =‘fact-sensitive’ inquiry. Ginsburg J crucially supports a key proposition

Series Editor’s Preface  ix by reference to the case law of three leading courts in the world (the CJEU, Canadian Supreme Court and UK Supreme Court): What makes a child’s residence “habitual” is therefore “some degree of integration by the child in a social and family environment.” OL v. PQ, 2017 E. C. R. No. C–111/17, ¶42 (Judgt. of June 8); accord Office of the Children’s Lawyer v. Balev, [2018] 1 S. C. R. 398, 421, ¶43, 424 D. L. R. (4th) 391, 410, ¶43 (Can.); A v. A, [2014] A. C., ¶54 (2013) (U. K.).

Ginsburg J went on to pay attention to academic commentary on the meaning of ‘habitual residence’ in the Hague Child Abduction Convention in order to come to the US Supreme Court’s overall conclusion that it refers to the child’s ‘home’: The Conference deliberately chose “habitual residence” for its factual character, making it the foundation for the Convention’s return remedy in lieu of formal legal concepts like domicile and nationality. See Anton, The Hague Convention on International Child Abduction, 30 Int’l & Comp. L. Q. 537, 544 (1981) (history of the Convention authored by the drafting commission’s chairman). That choice is instructive. The signatory nations sought to afford courts charged with determining a child’s habitual residence “maximum flexibility” to respond to the particular circumstances of each case. P. Beaumont & P. McEleavy, The Hague Convention on International Child Abduction 89–90 (1999) (Beaumont & McEleavy). The aim: to ensure that custody is adjudicated in what is presumptively the most appropriate forum – the country where the child is at home.

Ginsburg J gives the Court’s support to the idea that the Hague Child Abduction Convention proceedings can achieve the requirement to be ‘expeditious’, when determining where the child is habitually resident, by: providing courts with leeway to make “a quick impression gained on a panoramic view of the evidence.” Beaumont & McEleavy 103 (internal quotation marks omitted).

The two chapters by Mirela Župan and Martina Drventić on maintenance and on lis pendens and related proceedings are both well researched with insightful references to primary and secondary authorities. The chapter on party autonomy in applicable law by Cristina González Beilfuss is erudite and incisive giving an excellent succinct justification for party autonomy in private international law of family law. Maria Caterina Baruffi’s chapter on the applicable law provisions in the Hague Children’s Convention 1996 is thorough and helpful beyond the confines of EU law. The book is a rich resource for international family and succession lawyers and students which I am very glad to commend. I hope it gains a wide readership. Paul Beaumont University of Stirling

x

EDITORS’ PREFACE ILARIA VIARENGO AND FRANCESCA CLARA VILLATA

This book is built upon the outcomes of the Project ‘Planning the future of c­ ross-border families: a path through coordination – “EUFam’s”’ (JUST/2014/JCOO/AG/CIVI/7729). The EUFam’s Project is a two-year research project supported financially by the EU Commission’s Civil Justice Programme, to which the editors are eternally ­grateful. The research consortium was led by the University of Milan, and involved the Universities of Heidelberg, Osijek, Valencia and Verona, as well as the Max Planck Institute in Luxembourg, the Italian and Spanish Family Lawyers Associations and training academies for judges in Italy and Croatia. The main objective of the Project was to contribute to the correct and consistent implementation in the EU judicial area of the international legal instruments in cross-border family and succession matters, in particular the Brussels IIa, Rome III, Maintenance and Succession Regulations, the 2007 Hague Maintenance Protocol, the 2007 Hague Child Support Convention and eventually, of the new Regulations on Property Regimes. The objective of all these ­regulations and international instruments is to increase legal certainty, predictability and party autonomy, with the ultimate goal of removing the existing obstacles to the free movement of persons. However, the multitude and variety of variables that they put forth both as concerns grounds of jurisdiction and applicable law, and the mechanisms for recognition and enforcement of foreign judgments raised several coordination problems. The Project aimed at identifying the difficulties met by courts and ­practitioners in order to assess the effectiveness of the functioning in concreto of such instruments and proposing the paths that allow further improvement of such effectiveness. This has been pursued by building up and institutionalising a network of practitioners, judges and academics (‘EUFam’s Network’) and carrying out a number of activities. These activities addressed five Member States in which the Project’s partners are established (Croatia, Germany, Italy, Luxembourg and Spain), and other selected Member States (Bulgaria, Czech Republic, France, Greece, Slovakia).1 First of all, national case law on the EU family law regulations has been collected, analysed and stored in the EUFam’s database. Moreover, four national exchange seminars were held in Italy, Germany, Croatia and Spain, whose outcomes were published in analytical reports and a questionnaire disseminated to different categories of legal professionals to demonstrate

1 The deliverables of the Project activities are freely available for the public at the Project website (www.eufams.unimi.it) and Facebook account.

xii  Editors’ Preface additional difficulties that may arise in practice. With the aim of sharing good practice across national borders, an International Exchange Seminar took place at the Max Planck Institute in Luxembourg, followed by a Report on Internationally Shared Good Practices. After a First Assessment Report on the collected case law, a Final Study has been drafted by the Consortium on the basis of the outcomes of the project and three practical tools were created: the Policy Guidelines, intended for the EU legislator in order to contribute to removing current obstacles to the free movement of persons, which contained conclusions and recommendations in terms of legislation and policy making; the Model Protocol for Coordination among Judges, which provides some guidelines on direct communication among judges; and the Model Choice-of-Court and Choice-of-Law Clauses, aiming at supporting legal experts and end users in a more practical way by providing examples of real cases and tables with clauses to be possibly applied in each situation. Lastly, a Final Conference with nearly 400 attendees took place in December 2017, at the University of Milan. The editors are deeply grateful to all Project Partners for their precious collaboration and great efforts during the Project, as well as to the distinguished members of the Project Academic Advisory Board (Katharina Boele-Woelki, Alegria Borràs, Erik Jayme, Fausto Pocar, Vesna Tomljenovic). They wish also to thank the University of Heidelberg, coordinator of the new project EUFam’s II, which is ensuring the continuation of the project.2 The findings of the Project and of the Final Study, revised and enriched with the contribution of the main European experts in the relevant areas, may be found in this book, which offers a systematic and comprehensive approach to the European private international law in family and succession matters. It addresses all the complex features and problems arising from the combined application of all European and international instruments at stake, by providing an in-depth analysis of the effectiveness of the harmonisation reached through the EU legislation and suggesting paths to improve such legislation. This book is divided into 11 parts. Part I focuses on social and cultural issues of cross-border families. Parts II and III set up the scope of all EU family and succession regulations, and deal with some general issues of family and succession law, whose solution could have an impact on the coordination among the above-mentioned instruments. Parts IV, V and VI examine the interplay among rules on jurisdiction, parallel proceedings and on applicable law and the fragmentation of the recognition and enforcement regimes. Parts VII and VIII address coordination with third states proceedings, including the possible implications of Brexit, and the interaction with other legal instruments. Part IX provides for the practical overview of the cooperation between Central Authorities. Part X contains the national reports from six Member States, which analyse the case law collected in the context of the EUFam’s Project. Finally, in Part XI, five further deliverables of the Project may be found: the Report on the Outcomes of the Questionnaire on the Application of the Regulations, the Report on Internationally Shared



2 Available

at www2.ipr.uni-heidelberg.de/eufams.

Editors’ Preface  xiii Good Practices, Policy Guidelines, the Model Choice-of-Court and Choice-of-Law Clauses and the Model Protocol for Coordination between Judges. The editors are indebted to each and every author for their invaluable contributions and patience, and to the publisher, Hart Publishing, for producing this book. Special thanks are due to Lenka Válková for her excellent collaboration in the project and her great help in editing this book and to Adrienne Lester-Fitje for her skilful linguistic review. The gratitude is further extended to Edoardo Benvenuti and Nicolò Nisi for the generous assistance they have provided.

xiv

CONTENTS Foreword by Fausto Pocar������������������������������������������������������������������������������������������������������v Series Editor’s Preface���������������������������������������������������������������������������������������������������������� vii Editors’ Preface����������������������������������������������������������������������������������������������������������������������xi Table of Contributors����������������������������������������������������������������������������������������������������������xix Table of Conventions and Regulations���������������������������������������������������������������������������� xxiii Table of Journal Abbreviations�����������������������������������������������������������������������������������������xxix Case Citation������������������������������������������������������������������������������������������������������������������ xxxiii PART I CROSS-BORDER FAMILIES: SOCIAL AND CULTURAL ISSUES 1. Unification of Private International Law in Family Matters in the European Union: Cultural Issues������������������������������������������������������������������������������������3 Christian Kohler 2. Cross-Border Families and Social Issues: A Sociological Analysis������������������������������23 Paola Bonizzoni and Luisa Leonini 3. EUFam’s Cases and Issues of Islamic Law��������������������������������������������������������������������31 Elisa Giunchi PART II SCOPE OF THE EU FAMILY LAW REGULATIONS 4. Preliminary Questions��������������������������������������������������������������������������������������������������47 Thomas Pfeiffer and Josef Wittmann 5. Matrimonial Matters����������������������������������������������������������������������������������������������������53 Rosario Espinosa Calabuig 6. Parental Responsibility�������������������������������������������������������������������������������������������������61 Diletta Danieli 7. Maintenance������������������������������������������������������������������������������������������������������������������71 Mirela Župan and Martina Drventić 8. Succession����������������������������������������������������������������������������������������������������������������������93 Carmen Azcárraga Monzonís

xvi  Contents 9. Matrimonial Property Regimes����������������������������������������������������������������������������������103 Pablo Quinzá Redondo 10. Property Consequences of Registered Partnerships���������������������������������������������������109 Guillermo Palao Moreno PART III GENERAL ISSUES 11. Finding a Habitual Residence�������������������������������������������������������������������������������������117 Thalia Kruger 12. Habitual Residence in the Succession Regulation������������������������������������������������������133 Jacopo Re 13. Multiple Nationalities and EU Family Regulations���������������������������������������������������151 Stefania Bariatti PART IV JURISDICTION AND PARALLEL PROCEEDINGS 14. Jurisdiction������������������������������������������������������������������������������������������������������������������163 Arantxa Gandía Sellens, Amandine Faucon Alonso and Philippos Siaplaouras 15. Parallel Proceedings – Lis Pendens and Concurrent Procedures������������������������������203 Mirela Župan and Martina Drventić 16. Exceptio Rei Judicatae�����������������������������������������������������������������������������������������������223 Elena D’Alessandro PART V APPLICABLE LAW 17. Coordination Among the Objective Connecting Factors in Proceedings on Divorce, Maintenance, Property Regimes and Succession�����������������������������������233 Ilaria Viarengo 18. The Role of Party Autonomy in Pursuing Coordination�������������������������������������������243 Cristina González Beilfuss 19. The 1996 Hague Convention on the Protection of Children�������������������������������������259 Maria Caterina Baruffi 20. The Impact of the Proof of Foreign Law���������������������������������������������������������������������273 Rosario Espinosa Calabuig 21. Public Policy����������������������������������������������������������������������������������������������������������������287 Filippo Marchetti

Contents  xvii PART VI RECOGNITION AND ENFORCEMENT 22. The Fragmentation of the Recognition and Enforcement Regimes���������������������������305 Thomas Pfeiffer, Mirjam Escher and Josef Wittmann PART VII COORDINATION WITH THIRD STATES 23. Forum Necessitatis�����������������������������������������������������������������������������������������������������325 Pietro Franzina 24. Interaction of the Brussels IIa and Maintenance Regulations with (Possible) Litigation in Non-EU States: Including Brexit Implications��������������������������������������331 Paul R Beaumont PART VIII RELATION WITH OTHER INSTRUMENTS 25. Impact of the Regulations on the Free Movement of Persons in the EU�������������������347 Alessandra Lang 26. Case Law of the European Court of Human Rights on the Application of (Some of) the EU Family Regulations��������������������������������������������������������������������371 Patrick Kinsch 27. Relationship between the 2007 Hague Maintenance Protocol and the Prior Hague Maintenance Conventions���������������������������������������������������������������������385 Laura Carballo Piñeiro PART IX THE COOPERATION BETWEEN CENTRAL AUTHORITIES 28. The Cooperation between Central Authorities under the Brussels IIa Regulation�������399 Andrea Schulz 29. The Cooperation of Central Authorities under the Maintenance Regulation����������415 Hrvoje Grubišić PART X NATIONAL REPORTS 30. The Application of the EUFam’s Regulations in Croatia�������������������������������������������429 Mirela Župan, Ines Medić, Paula Poretti, Nataša Lucić and Martina Drventić 31. The Application of the EUFam’s Regulations in the Czech Republic�������������������������461 Lenka Válková

xviii  Contents 32. The Application of the EUFam’s Regulations in Germany����������������������������������������487 Mirjam Escher 33. The Application of the EUFam’s Regulations in Italy������������������������������������������������501 Diletta Danieli and Cinzia Peraro 34. The Application of the EUFam’s Regulations in Slovakia������������������������������������������521 Lenka Válková 35. The Application of the EUFam’s Regulations in Spain����������������������������������������������543 Rosario Espinosa Calabuig, Laura Carballo Piñeiro, Carmen Azcárraga Monzonís, Pablo Quinzá Redondo, Guilllermo Palao Moreno and Carlos Esplugues Mota PART XI DELIVERABLES OF THE PROJECT 36. The Outcomes of the Online Questionnaire���������������������������������������������������������������561 Caterina Fratea and Diletta Danieli 37. Internationally Shared Good Practices����������������������������������������������������������������������587 Arantxa Gandia Sellens, Céline Camara, Amandine Faucon Alonso and Philippos Siaplaouras 38. Choice-of-Court and Choice-of-Law Clauses������������������������������������������������������������625 Francesca Clara Villata and Lenka Válková 39. EUFam’s Policy Guidelines������������������������������������������������������������������������������������������799 Carmen Azcárraga Monzonís, Maria Caterina Baruffi, Diletta Danieli, Mirjam Escher, Rosario Espinosa Calabuig, Amandine Faucon Alonso, Caterina Fratea, Arantxa Gandía Sellens, Filippo Marchetti, Marta Requejo Isidro, Philippos Siaplaouras, Lenka Válková, Ilaria Viarengo, Josef Wittmann and Mirela Župan 40. Model Protocol for Coordination Among Judges�������������������������������������������������������843 EUFam’s Working Group ‘Judicial Committee’ Index�����������������������������������������������������������������������������������������������������������������������������������885

TABLE OF CONTRIBUTORS Carmen Azcárraga Monzonís Professor of Private International Law, University of Valencia Stefania Bariatti Professor of Private International Law, University of Milan Maria Caterina Baruffi Professor of Private International Law, University of Verona Paul R Beaumont Professor of Private International Law, University of Stirling Paola Bonizzoni Professor of General Sociology, University of Milan Céline Camara Former Research Fellow, Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law Laura Carballo Piñeiro Professor, Nippon Foundation Chair, World Maritime University Elena D’Alessandro Professor of Civil Procedural Law, University of Turin Diletta Danieli Research Fellow in European Union Law, University of Verona Martina Drventić PhD Candidate of the Croatian Science Foundation, JJ Strossmayer University of Osijek Mirjam Escher Research Fellow in Private International Law, Heidelberg University Rosario Espinosa Calabuig Professor of Private International Law, University of Valencia Carlos Esplugues Mota Professor of Private international Law, University of Valencia Amandine Faucon Alonso Affiliated Researcher, Institute of Private International Law, KU Leuven and Former Senior Research Fellow, Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law

xx  Table of Contributors Pietro Franzina Professor of Private International Law, Catholic University of the Sacred Heart, Milan Caterina Fratea Professor of European Union Law, University of Verona Arantxa Gandía Sellens Former Senior Research Fellow, Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law Elisa Giunchi Professor of Asian History and Institutions, University of Milan Cristina González Beilfuss Professor of Private International Law, University of Barcelona Hrvoje Grubišić Secretary of the European Judicial Network in Civil and Commercial Matters, European Commission, Directorate General for Justice and Consumers Patrick Kinsch Professor of Private International law, University of Luxembourg Christian Kohler Former Director General at the Court of Justice of the European Union; Honorarprofessor at the Europa-Institut of Saarland University Thalia Kruger Professor of Private International Law, University of Antwerp; Honorary Research Associate, University of Cape Town Alessandra Lang Professor of European Union Law, University of Milan Luisa Leonini Professor of Sociology of Culture and Communication, University of Milan Nataša Lucić Assistant Professor of Family Law, JJ Strossmayer University of Osijek Filippo Marchetti Senior Researcher, Trilateral Research Ines Medić Associate Professor of Private International Law, University of Split Guillermo Palao Moreno Professor of Private International Law, University of Valencia Cinzia Peraro Research Fellow in European Union Law, University of Verona

Table of Contributors  xxi Thomas Pfeiffer Professor of Private Law, Private International Law, Comparative Law and International Dispute Resolution, Heidelberg University Paula Poretti Assistant Professor of Civil Procedural Law, JJ Strossmayer University of Osijek Pablo Quinzá Redondo Lecturer of Private International Law, University of Valencia Jacopo Re Researcher in Private International Law, University of Milan Marta Requejo Isidro Professor, Senior Research Fellow, Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law Philippos Siaplaouras Research Fellow, Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law Andrea Schulz German liaison judge in the French Ministry of Justice Lenka Válková Research Fellow in Private International Law, University of Milan Ilaria Viarengo Professor of Private International Law, University of Milan Francesca Clara Villata Professor of Private International Law, University of Milan Josef Wittmann Research Fellow in Private International Law, Heidelberg University Mirela Župan Professor of Private International Law, JJ Strossmayer University of Osijek

xxii

TABLE OF CONVENTIONS AND REGULATIONS 1956 Hague Maintenance Convention

Convention of 24 October 1956 on the law applicable to maintenance obligations towards children (entered into force 1 January 1962)

1958 Hague Maintenance Convention

Convention of 15 April 1958 concerning the ­recognition and enforcement of decisions relating to maintenance obligations towards children (entered into force 1 January 1961)

1961 Hague Convention on Form of Testamentary Disposition

Convention of 5 October 1961 on the Conflicts of Laws Relating to the Form of Testamentary Dispositions

1961 Hague Convention on the Protection of Infants

Convention of 5 October 1961 concerning the powers of authorities and the law applicable in respect of the protection of infants (entered into force 4 February 1969)

1970 Hague Divorce Convention

Convention of 1 June 1970 on the Recognition of Divorces and Legal Separations (entered into force 24 August 1975)

1973 Hague Maintenance Convention

Convention of 2 October 1973 on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations (entered into force 1 August 1976)

1980 Hague Child Abduction Convention

Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (entered into force 1 July 1983)

1988 Lugano Convention

Convention on jurisdiction and enforcement of judgments in civil and commercial matters [1988] OJ L 319

1993 Hague Adoption Convention

Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption (entered into force 1 May 1995)

1996 Hague Convention on the Protection of Children

Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (entered into force 1 January)

xxiv  Table of Conventions and Regulations 2000 Hague Convention on Convention of 13 January 2000 on the International the International Protection Protection of Adults (entered into force 1 January 2009) of Adults 2003 Convention on Contact concerning Children

Convention on Contact concerning Children of 15 May 2003 (ETS No. 192, entered into force on 1 September 2005)

2007 Hague Child Support Convention

Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance (entered into force 1 January 2013)

2007 Hague Maintenance Protocol

Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations (entered into force 1 August 2013)

2007 Lugano Convention

Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2007] OJ L 339/3

Brussels Convention

1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters [1972] OJ L299/32

Brussels I Regulation

Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2001] OJ L 12/1

Brussels Ia Regulation

Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2012] OJ L 351/1

Brussels II Convention

Convention drawn up on the basis of Article K.3 of the Treaty on European Union, on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters – Declaration, annexed to the minutes of the Council, adopted during the Justice and Home Affairs Council on 28 and 29 May 1998 when drawing up the Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters [1998] OJ C221/2

Brussels II Regulation

Council Regulation (EC) No 1347/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses [2000] OJ L 160/19

Table of Conventions and Regulations  xxv Brussels IIa Regulation

Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 [2003] OJ L 338/1

Brussels IIter Proposal

European Commission, Proposal for a Council Regulation on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast) COM(2016) 411 final, 30 June 2016

Brussels IIter Regulation

Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction [2019] OJ L 178

Council’s General Approach Council of the European Union, Proposal for a Council as to Brussels IIter Proposal Regulation on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast) – General approach 15401/18, 12 December 2018 ECHR

European Convention on Human Rights

European Account Preservation Order Regulation

Regulation (Eu) No 655/2014 of the European Parliament and of the Council of 15 May 2014 establishing a European Account Preservation Order procedure to facilitate cross-border debt recovery in civil and commercial matters [2014] OJ L 189/59

European Enforcement Order Regulation

Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims [2004] OJ L143/15

European Payment Order Regulation

Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure [2006] OJ L 399/1

European Small Claims Procedure Regulation

Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European Small Claims Procedure [2007] OJ L 199/1

xxvi  Table of Conventions and Regulations Maintenance Regulation

Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations [2009] OJ L 7/1

Matrimonial Property Regimes Regulation

Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes [2016] OJ L 183/1

Opinion of the European Economic and Social Committee on the Brussels IIter Proposal

Opinion of the European Economic and Social Committee on the ‘Proposal for a Council Regulation on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast)’ (COM(2016) 411 final – 2016/0190 (CNS)) [2017] OJ C 125/46

Regulation on the Property Council Regulation (EU) 2016/1104 of 24 June 2016 Consequences of Registered implementing enhanced cooperation in the area of Partnerships jurisdiction, applicable law and the recognition and enforcement of decisions in matters of the property consequences of registered partnerships [2016] OJ L 183/30 Rome I Regulation

Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) [2008] OJ L 177/6

Rome II Regulation

Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) [2007] OJ L 199/40

Rome III Regulation

Council Regulation (EU) No 1259/2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation [2010] OJ L 343/10

Service Regulation

Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000 [2007] OJ L 324/79

Table of Conventions and Regulations  xxvii The Stockholm Programme

European Council, The Stockholm Programme – An open and secure Europe serving and protecting citizens, 17024/09 JAI 896, 2 December 2009

Succession Regulation

Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and ­enforcement of decisions and acceptance and ­enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession [2012] OJ L 201/107

Tampere Summit Conclusions

Council of the European Union, Presidency Conclusions, Tampere European Council, 15–16 October 1999, 16 October 1999

TEU

Consolidated version of the Treaty on European Union (TEU) [2012] OJ C326/13

TFEU

Consolidated version of the Treaty on the Functioning of the European Union [2012] OJ C326/47

xxviii

TABLE OF JOURNAL ABBREVIATIONS AJF

Actualité juridique Famille

AJCL

American Journal of Comparative Law

ASIL

American Journal of International Law

AULR

American University Law Review

CLJ

Cambridge Law Journal

Child&FamLQ

Child and Family Law Quarterly

CML Rev

Common Market Law Review

CLR

Comparative Law Review

Crim LR

Criminal Law Review

CDT

Cuadernos de Derecho Transnacional

DNotZ

Deutsche Notar-Zeitschrift

DCI

Diritto del Commercio Internazionale

DUE

Diritto dell’Unione europea

DrP

Droit & Patrimoine

DF

Droit de la famille

EuConst

European Constitutional Law Review

EFAR

European Foreign Affairs Review

EJLR

European Journal of Law Reform

EJLS

European Journal of Legal Studies

EL Rev

European Law Review

GP

Gazette du Palais

ILSAJI&CL

ILSA Journal of International & Comparative Law

ICLQ

International and Comparative Law Quarterly

IFLJ

International Family Law Journal

xxx  Table of Journal Abbreviations IntJLPolFam

International Journal of Law, Policy and the Family

AAML

Journal American Academy Matrimonial Lawyers

JDI

Journal du droit international

JEMS

Journal of Ethnic and Migration Studies

JFI

Journal of Family Issues

JPIL

Journal of Private International Law

JurRev

Juridical Review

LQR

Law Quarterly Review

MLR

Modern Law Review

NedIPR

Nederlands Internationaal Privaatrecht

NILR

Netherlands International Law Review (before 1975: Nederlands Tijdschrift voor internationaal recht)

NJW

Neue Juristische Wochenschrift

OJLS

Oxford Journal of Legal Studies

FGPrax

Praxis der Freiwilligen Gerichtsbarkeit

IPRax

Praxis des Internationalen Privat- und Verfahrensrechts

PL

Public Law

RabelsZ

Rabels Zeitschrift für ausländisches und internationales Privatrecht

REDI

Revista española de derecho internacional

RCDIP

Revue critique de droit international privé (since 1947; before: Revue critique de droit international since 1934 until 1946; Revue de droit international privé since 1922 until 1933; Revue de droit international privé et de droit pénal international since 1905 until 1921)

RDUE

Revue du droit de l’Union européenn

RDI

Rivista di diritto internazionale

RDIPP

Rivista di diritto internazionale privato e processuale

RDP

Rivista di diritto processuale

SP&S

Social Policy and Society

TCFDIP

Travaux du Comité français de droit international privé

UColoR WUJL&P

University of Colorado Law Review Washington University Journal of Law & Policy

Table of Journal Abbreviations  xxxi WM

Wertpapier-Mitteilungen, Teil IV, Zeitschrift für Wirtschafts- und Bankrecht

YaleLJ

Yale Law Journal

YBPrIL

Yearbook of Private International Law

ZErb

Zeitschrift für die Steuer- und Erbrechtspraxis

ZEV

Zeitschrift für Erbrecht und Vermögensnachfolge

ZZPInt

Zeitschrift für Zivilprozess International

xxxii

CASE CITATION The EUFam’s code: the case law is cited in footnotes by reference to its ‘EUFam’s code’, a unique code generated for efficient research within the EUFam’s public database, ­available at www.eufams.unimi.it and at www2.ipr.uni-heidelberg.de/eufams/index.php? site=entscheidungsdatenbank. The code is composed as follows: • two letters indicating the country (publications.europa.eu/code/pdf/370000en.htm); • one letter indicating the level of the court (F = first, S = second, T = third, C = constitutional, or A = administrative); • the date of the judgment, in reverse order (YYYYMMDD).

xxxiv

part i Cross-Border Families: Social and Cultural Issues

2

1 Unification of Private International Law in Family Matters in the European Union: Cultural Issues CHRISTIAN KOHLER

I.  Introduction: Culture and Family Law in Europe Law and culture are Siamese twins, inextricably linked to each other. Law forms part of the rules governing social life and is itself shaped by society. It is the expression of the ‘value systems, traditions and beliefs’ which characterise a social group, a society, a nation.1 This is true in particular for the links between culture and family law. Indeed, the legal regime of interpersonal relations within the group of individuals which forms a ‘family’ has always reflected the traditions and beliefs of a given society which the legislator takes as a basis for its action. As there is a great number of societies one is faced with a plurality, and diversity, of cultures. For the ethnologist: Une constatation s’impose: la diversité des cultures humaines est, en fait dans le présent, en fait et aussi en droit dans le passé, beaucoup plus grande et plus riche que tout ce que nous sommes destinés à en connaître jamais.2

To the plurality and diversity of cultures corresponds a plurality and diversity of family concepts and family laws. In the words of a British judge: [T]here have been enormous changes in the social and religious life of our country. The fact is that we live in a secular and pluralistic society. But we also live in a multicultural society of many faiths. One of the paradoxes of our lives is that we live in a society which is at one and the same time becoming both increasingly secular but also increasingly diverse in religious affiliation. Our society includes men and women from every corner of the globe and of every

1 The concept of culture referred to in the present context is that adopted by the Unesco World Conference on Cultural Policies (Mexico, 1982), according to which ‘culture may now be said to be the whole complex of distinctive spiritual, material, intellectual and emotional features that characterize a society or social group. It includes not only the Arts and letters, but also modes of life, the fundamental rights of the human being, value systems, traditions and beliefs’. 2 C Lévi-Strauss, Race et histoire (1952, réédition 1987) 14.

4  Christian Kohler creed and colour under the sun … The result of all this is that in our multicultural and pluralistic society the family takes many forms. Indeed, in contemporary Britain the family takes an almost infinite variety of forms … The law, as it seems to me, must adapt to these realities.3

This analysis applies of course not only to Britain, but also to other European states and beyond.4 Many of these states have in fact reacted to these developments by adapting their substantive law of family relations. Additional measures have been adopted in recent years by European legislators following the ongoing inflow of refugees, asylumseekers, and other migrants from the Middle East and Africa, eg, by amending the rules on marriage in order to cope with forced marriages and/or child marriages.5 At the same time, despite the plurality and diversity of substantive family laws, discussions about the existence of a common European family law have led to a number of scholarly initiatives and have generated proposals on common principles of substantive family law.6 However, although isolated notions belonging to a ‘European’ family law tend to appear following the case law of the Court of Justice of the European Union (CJEU), there is to date no harmonisation of substantive family law in the European Union. The situation is different as far as the conflict of laws, or private international law, in family matters is concerned. On the one hand, new rules on jurisdiction, choiceof-law, and the recognition of foreign judgments have been enacted in that field by a number of European states over the past decades, and, more recently, ad hoc rules have been adopted in the context of the new legislation on marriage just mentioned.7 On the other hand, since the Treaty of Amsterdam, the European Union has developed its own policy of private international law which has become, under the Treaty of Lisbon, a component of the judicial cooperation in civil matters within the area of freedom, security, and justice set up by the Treaties.8 In the field of family conflicts, a number of Regulations have been adopted since the year 2000, gradually superseding national law in that field. They concern the jurisdiction of courts and the recognition and enforcement of decisions in matrimonial matters and matters of parental responsibility (now the Brussels IIa Regulation) as well as in matters of maintenance (Maintenance Regulation). In addition, uniform choice-of-law rules have been adopted in matters of divorce and legal separation (the Rome III Regulation); for maintenance obligations, Article 15 of Maintenance Regulation refers to the 2007 Hague Maintenance Protocol. In 2016, Matrimonial Property Regimes Regulation and Regulation on the Property Consequences of Registered Partnerships have been adopted. Last but not least, it should be mentioned that in the related field of succession law, uniform conflict rules have been adopted by the Succession Regulation. 3 Pawandeep Singh v Entry Clearance Officer, New Delhi [2005] WLR 325 (CA), per Munby LJ. 4 C McGlynn, Families and the European Union: Law, Politics and Pluralism (Cambridge, Cambridge University Press, 2006) 23. 5 See, eg, the amendment of Art 202-1 of the French Civil Code (Act No 2014-873 of 4 August 2014, Art 55) and the new German rules on the marriageable age in § 1303 of the Civil Code (Act of 17 July 2017). 6 On the work of the Commission on European Family Law (CEFL) see K Boele-Woelki, ‘The impact of the Commission on European Family Law (CEFL) on European family law’ in JM Scherpe (ed), European Family Law, Volume I, The Impact of Institutions and Organisations on European Family Law (Edward Elgar Publishing, 2016) 209; a comprehensive overview is provided by JM Scherpe, The Present and Future of European Family Law (Edward Elgar Publishing, 2016). 7 See eg, in Germany the new Art 13(3) of the Introductory Law to the Civil Code. 8 Art 3(2) TEU and Arts 67f, 81 TFEU.

Unification of Private International Law in Family Matters in the European Union  5 It is the purpose of this contribution to look into the cultural issues which appear in the process of unification of family conflicts rules in the EU. Is that a worthwhile undertaking? The question may be asked, because the links between culture and international family law are less obvious than the ties between culture and substantive family law that have been referred to above. It is true that private international law is sometimes perceived as a predominantly technical tool to regulate the activities of courts and to determine the scope of application of substantive laws in cross-border situations. That perception neglects the fact, however, that the basic choices the legislator has to make in that field are guided by the approach of the state concerned towards foreign law and foreign courts. Is there trust in the administration of law by foreign courts? Is foreign law considered as being in principle equivalent to the law of the forum? Are foreign judgments easily recognised? Where these questions are answered in the affirmative the approach of the conflicts legislator will differ from the approach based on a bias for the courts and the law of the forum. For the states of Continental Europe the first approach may be said to be predominant, and that is also the basic approach of the European legislator. This is an important choice. Where legal systems are equivalent, their diversity is taken seriously, and that implies a relativisation of the position of the forum. In the realm of family law, as will be seen, the cultural relativity behind the recognition of the equivalence of legal systems9 may at times be difficult to endure and lead to unilateral reactions of the forum. Whatever position the forum takes as to the equivalence of foreign law and the law of the forum, the choices made by the legislator of conflict rules are frequently, and, some would say, inevitably, guided by the same policies which underpin the substantive rules in the field concerned. This holds particularly true in family law: To a certain extent, international family law always reflects the state of internal substantive family law. The stricter the rules of internal law are, the stricter conflict of law rules tend to be. The values of the internal legal order have to be protected against the application of foreign law and the recognition of foreign decisions.10

The correctness of that statement will be tested in the following paragraphs. It will be seen, first, that cultural impulses appear already in the provisions of primary law which define the competences of the EU for the unification of the law of family conflicts. Second, the abovementioned Regulations will be looked at in order to see how far cultural elements have influenced some key features of the uniform rules. This concerns, on the one hand, the choices for the connecting factors of the conflict rules and, on the other, the exceptions to the normally applicable rules. Indeed, it is in the latter field that cultural issues, amounting at times to a clash of cultures, will be detected. Additional challenges affecting the diversity of legal cultures within the Union will be addressed at the end.

9 cf E Jayme, ‘Kulturelle Relativität und Internationales Privatrecht’, in G Schulze (ed), Kulturelle Relativität und Internationales Recht (Nomos, 2014) 43. 10 D Martiny, ‘Objectives and values of (private) international law in family law’ in J Meeusen, M Pertegas, G Straetmans, F Swennen (eds), International family law for the European Union (Intersentia, Antwerpen, 2007) 69, 77 (emphasis added).

6  Christian Kohler

II.  International Family Law in the EU Treaties: National Identity and Cultural Diversity A.  Legal Culture and (International) Family Law as Part of the National Identity of Member States In the EU Treaties, the basic tension between integration and national identity appears in various contexts. Article 4(2) TEU stipulates that the Union shall respect the national identities of the Member States, ‘inherent in their fundamental structures, political and constitutional’. That includes the basic principles and typical features of the Member States’ legal systems, ie their legal culture.11 There can be no doubt that this aspect of a nation’s culture is included in the ‘rich cultural and linguistic diversity’ which the Union is to respect according to Article 3(3) TEU.12 In the present context, the diversity of legal cultures is addressed in Article 67(1) TFEU which provides that the Union shall constitute an area of freedom, security, and justice with respect for fundamental rights ‘and the different legal systems and traditions of the Member States’. Bearing that in mind, it is no surprise that the close ties between international family law and national legal culture of the individual Member States have led to a kind of exception culturelle within the system of competences of the EU. The competence to adopt measures in civil matters ‘having cross-border implications’, conferred to the European Community (as it then was) by the Treaty of Amsterdam and defined in Article 65 EC, had been understood avant la lettre as including matters of family law. The Brussels II Regulation was among the first instruments adopted under the new regime. However, at that time the intergovernmental elements of the new competence made sure that no measure could be adopted against the will of a single Member State: according to Article 67 EC the Council acted unanimously on a proposal from the Commission ‘or on the initiative of a Member State’, the European Parliament being merely consulted. When the Treaty of Nice amended that rule by making the co-decision procedure applicable to measures provided for in Article 65 EC, that amendment did not apply ‘to aspects relating to family law’.13 Thus, the first mention of family law in the Treaty was coupled with the continuing rule of unanimity. The Lisbon Treaty maintained that rule and gave it its actual form: Article 81(3) TFEU provides that measures concerning family law with cross-border implications are adopted with a special legislative procedure where the Council acts unanimously after consulting the European Parliament.14 It is true that the Council, on a proposal by the Commission, may adopt a decision determining aspects of family law which may be subject to acts adopted by the ordinary legislative procedure (where the 11 That idea had already been expressed in the 1997 Protocol on the application of the principles of subsidiarity and proportionality: according to its para 7, ‘While respecting Community law, care should be taken to respect well established national arrangements and the organization and working of the Member States’ legal systems’. 12 See also Art 167 TFEU. Cf C Kohler, ‘Le droit de l’Union européenne face à la diversité culturelle: tensions et solutions’ (2009) Revue hellénique de droit international 473. 13 Art 67(5) EC as amended by the Treaty of Nice. 14 As unanimity could not be reached for measures in matters of divorce, matrimonial property regimes, and property consequences of registered partnerships, the respective Regulations had to be adopted by way of enhanced cooperation under Art 326f TFEU.

Unification of Private International Law in Family Matters in the European Union  7 act is adopted jointly by the European Parliament and the Council, the latter acting by a qualified majority). However, the Commission’s proposal for such a passerelle decision must be sent to the national Parliaments, and the decision cannot be adopted if a national Parliament is opposed to it.15 Obviously, such a right of veto is an alien element in the system of competences established by the Treaties.16 It shows how strongly international family law is linked to the core of national legal systems: it belongs, like substantive family law, to the national identity of the Member States that the Union is bound to respect. In its judgment, which eventually upheld the constitutionality of the German act allowing the ratification of the Lisbon Treaty, the German Bundesverfassungsgericht insisted that in view of the consequences of an Article 81(3) passerelle decision a positive vote of the German representative in the Council required an act of the German Parliament.17 The Court went even further by stating that a transfer of competences in matters of substantive family law was strictly excluded under the German constitution as this part of the law belonged to the cultural domain which had to remain under the democratic self-determination and responsibility of the national legislator.18 The finding that (international) family law is strongly linked to the core of national legal systems may be further illustrated by the position defended by several Member States in the Coman case before the CJEU.19 That case concerned the right of residence in Romania of a third-country national who had concluded a same-sex marriage with a Romanian national in Belgium. The Romanian authorities had refused to recognise the marriage for the purpose of the derived right of residence of the third-country spouse. Before the European Court a number of governments supported the Romanian position by referring to the fundamental importance of the institution of marriage and their intention to maintain a conception of that institution as a union between a man and a woman, protected in some Member States by laws having constitutional status. The Latvian government stated that, even where a refusal to recognise a same-sex marriage concluded in another Member State constituted a restriction of Article 21 TFEU, such a restriction was justified on grounds of public policy and national identity, as referred to in Article 4(2) TEU. Responding to that argument, the Court found that: the obligation for a Member State to recognise a marriage between persons of the same sex concluded in another Member State in accordance with the law of that state, for the sole purpose of granting a derived right of residence to a third-country national, does not undermine the institution of marriage in the first Member State, which is defined by national 15 See the third subparagraph of Art 81(3) TFEU; this corresponds to the simplified revision procedure provided for in Art 48(7) TEU. 16 cf C Kohler, ‘Vom Markt zum Menschen: Das internationale Familienrecht der Europäischen Union nach dem Vertrag von Lissabon’ in W Meng, G Ress, T Stein (eds), Europäische Union und Globalisierung. Festschrift zum 60-jährigen Bestehen des Europa-Instituts (Nomos, 2011) 309. 17 BVerfG 30 June 2009, BVerfGE 123, 267, Neue Juristische Wochenschrift 2009, 2267, paras 249, 260. 18 ‘Demokratische Selbstbestimmung ist … auf die Möglichkeit, sich im eigenen Kulturraum verwirklichen zu können, besonders angewiesen bei Entscheidungen, wie sie insbesondere … im Familienrecht … getroffen werden … [D]as Recht der familiären Beziehungen [berührt] in besonderem Maße gewachsene Überzeugungen und Wertvorstellungen, die in spezifischen historischen Traditionen und Erfahrungen verwurzelt sind. Demokratische Selbstbestimmung erfordert hier, dass die jeweilige durch solche Traditionen und Überzeugungen verbundene politische Gemeinschaft das Subjekt demokratischer Legitimation bleibt’ in BVerfG above n 17 para 260. 19 Case C-673/16 Relu Adrian Coman and Others v Inspectoratul General pentru Imigrări and Ministerul Afacerilor Interne [2018] ECLI:EU:C:2018:385.

8  Christian Kohler law and … falls within the competence of the Member States. Such recognition does not require that Member State to provide, in its national law, for the institution of marriage between persons of the same sex. It is confined to the obligation to recognise such marriages, concluded in another Member State in accordance with the law of that state, for the sole purpose of enabling such persons to exercise the rights they enjoy under EU law. Accordingly, an obligation to recognise such marriages for the sole purpose of granting a derived right of residence to a third-country national does not undermine the national identity or pose a threat to the public policy of the Member State concerned.20

It is remarkable how carefully the Court argues in order not to interfere with the national competence in matters of marriage and how consciously it respects the domaine réservé of the Member States to define core concepts of family law. However, the fact remains that the obligation to recognise a same-sex marriage concluded abroad implies that the national conflict rule which opposed the recognition of that marriage is superseded by Union law, albeit ‘for the sole purpose’ of exercising rights conferred by EU law. Likewise, by barring the use of the public policy exception in that context the Court interferes with the working of a mechanism which is part of national conflicts law. Last but not least the obligation to recognise same-sex marriages concluded abroad increases the pressure on the national legislator to amend the substantive family law by opening the institution of marriage to persons of the same sex.

B.  Recognition of Status, National Identity, and Fundamental Rights of the Individual The judgment in Coman is but the last in a series of rulings in which the CJEU established an obligation of Member States to recognise a status of family law acquired in another Member State in cases where the application of the normally applicable conflict rules would have amounted to a restriction of a right flowing from the Union citizenship of the person concerned. In previous judgments, as is well known, the Court was concerned with the refusal of national authorities, based on the conflict rules of the forum, to recognise a surname lawfully acquired in another Member State. In several judgments21 the Court held that the discrepancies of surnames resulting from such refusal constituted a restriction of the freedom of movement of the interested parties contrary to Article 21 TFEU and that the ‘foreign’ surname had to be recognised in the Member State concerned.22 Unsurprisingly, the defence of the Member States concerned

20 ibid para 45 (emphasis added). 21 Case C-148/02 Carlos Garcia Avello v Belgian State [2003] ECR I-11613, ECLI:EU:C:2003:539; Case C-353/06 Stefan Grunkin e Dorothee Regina Paul [2008] ECR I-07639, ECLI:EU:C:2008:559. For a detailed discussion see C Kohler, ‘Towards the recognition of civil status in the European Union’ (2013/2014) XV YBPrIL 13. 22 The conditions under which the obligation exists have been further refined in later judgments, see Case C-438/1 Nabiel Peter Bogendorff von Wolffersdorff v Standesamt der Stadt Karlsruhe and Zentraler Juristischer Dienst der Stadt Karlsruhe [2016] ECLI:EU:C:2016:401; Case C-541/15 Mircea Florian Freitag [2017] ECLI:EU:C:2017:432. Cf F Jault-Seseke and E Pataut, ‘Le citoyen européen et son nom’ in B Hess, E Jayme, H Mansel (eds), Europa als Rechts- und Lebensraum. Liber amicorum Christian Kohler (Bielefeld, Verlag Ernst und Werner Gieseking, 2018) 371.

Unification of Private International Law in Family Matters in the European Union  9 included the argument that the law of names was a core element of the law of persons which belonged to the essentials of the national legal system protected by EU law. The Court, after some hesitation, was prepared to accept that a restriction to the right of free movement could indeed be justified by reference to the national identity of the Member State concerned, at least in cases where the recognition of the surname acquired abroad would violate its constitutional public order.23 The Court’s position on the recognition of surnames has been guided so far in the first place by the objective to implement the unfettered exercise of the rights of free movement conferred by Union citizenship and less by the concern that the civil status of the individual be protected of its own right. However, the latter element appears in the Coman judgment24 where it serves as an alternative, or additional, motivation for the Court’s holding. The Court highlighted that the right to respect for private and family life is a fundamental right guaranteed by the Charter and referred to the case law of the European Court of Human Rights to the effect that the relationship of a homosexual couple may fall within the notion of ‘private life’ and that of ‘family life’ in the same way as the relationship of a heterosexual couple in the same situation. That line of argument, a novelty in the CJEU’s case law, accepts that the rights of the individual, his droit à l’identité,25 may be opposed to the Member States’ invocation of its national identity: the cultural identity26 of the individual takes precedence over the cultural identity of the Member States concerned.

III.  Cultural Issues Related to the Unification of Private International Law in Family Matters through Secondary Legislation As already mentioned, the unification of private international law in family matters in the EU has so far been achieved by Regulations on the jurisdiction of courts and the recognition and enforcement of decisions; uniform rules on the applicable law have 23 Case C-208/09 Ilonka Sayn-Wittgenstein v Landeshauptmann von Wien [2010] ECR I-13693, ECLI:EU:C:2010:806. The Court accepted that the objective of Austrian law to preserve the principle of equality by prohibiting the acquisition, possession, or use by its nationals of titles of nobility or nobiliary elements justified the refusal to recognise the surname including a title of nobility attributed in Germany. See also case C-391/09 Malgožata Runevič-Vardyn and Łukasz Paweł Wardyn v Vilniaus miesto savivaldybės administracija and Others [2011] ECR I-03787, ECLI:EU:C:2011:291, which concerned the spelling of the name of a Polish national in civil status documents in Lithuania. Here, the Court did not exclude that the rules of Lithuanian law requiring names of natural persons to be entered in official documents of civil status in a form which complies with the rules governing the spelling of the official national language could bar the recognition of a Polish name spelled according to the rules governing the spelling of the Polish language in Poland. 24 Case C-673/16 Coman e a. (n 19). 25 A Bucher, ‘La dimension sociale du droit international privé’ (2009) 341 Recueil des cours de l’Académie de Droit International 114 f; C Kohler, ‘L’autonomie de la volonté en droit international privé: un principe universel entre liberalisme et étatisme’ (2013) 359 Recueil des cours de l’Académie de Droit International 287, 400. 26 E Jayme, ‘Identité culturelle et intégration: le droit international privé post-moderne’ (1995) 251 Recueil des cours de l’Académie de Droit International 37, 183. A comprehensive discussion of the subject is provided by Yuko Nishitani, 'identité culturelle en droit international privé de la famille', (2019) 401 Recueil des cours de I'Académie de Droit International 139. This course was published when the present contribution was about to be printed.

10  Christian Kohler been adopted in matters of divorce and legal separation, maintenance obligations, matrimonial property regimes, property consequences of registered partnerships, and in the field of succession. In the Member States that are bound by them27 these acts have in principle general application. However, they do not affect the application of international conventions with third states concluded before the adoption of the act concerned. For example, the Brussels IIa Regulation applies in principle without prejudice to the Concordats with the Holy See entered into by Portugal, Italy, and Spain.28 In order to take account of the plurality and diversity of legal systems that exist within a number of Member States, special provisions apply. According to the Regulations on choice of law, where a Member State has several territorial units, each of which has its own system of law, or several systems of law applying to different categories of persons, the internal rules governing the territorial or the inter-personal conflicts in the Member State concerned apply.29 This is relevant, eg, for the comunidades autonomas in Spain and, in Greece, for the Muslim community in the province of Thrace. This may even impact on the application of the Regulations on jurisdiction and recognition of judgments. Thus, a divorce of Muslims pronounced by the Mufti in Western Thrace and ratified by the local ordinary court30 arguably qualifies for recognition under the Brussels IIa Regulation.31 The conflict rules of the EU Regulations follow a classical pattern. The rules on jurisdiction are based on the assumption that they reflect a genuine link, or at least a reasonable connection, between the parties or the object of the litigation and the forum;32 at times, the interest of a sound administration of justice is also taken into account as an additional element.33 The rules on recognition and enforcement tend to achieve the ‘free movement’ of decisions within the Union by providing for an ipso iure recognition and by minimising the control to which the decisions may be subjected. 27 The Regulations do not apply in all the Member States. Denmark is not bound at all by acts adopted in the field of judicial cooperation in civil matters. The UK and Ireland are bound by the Brussels IIa Regulation, but not always by the other Regulations. The Succession Regulation does not apply in these two Member States, and the 2007 Hague Maintenance Protocol is not in force for the UK. A particular situation exists for the Rome III Regulation and the Regulations on Matrimonial Property Regimes and on the Property Consequences of Registered Partnerships. These acts have been adopted by enhanced cooperation and are binding only for the participating Member States. 28 See Art 63 of the Brussels IIa Regulation. 29 See Art 14f of the Rome III Regulation, and Art 33f of the Regulations on Matrimonial Property Regimes and on the Property Consequences of Registered Partnerships. 30 The jurisdiction of the Mufti in family and succession matters is regulated by Law 1920/1991, recently amended by Law 4511/2018. The procedure for ratification is governed by Art 5(3) of Law 1920/1991; on the jurisdiction of the Mufti and the requirement of ratification K Tsitselikis, Old and new Islam in Greece (Brill, Nijhoff, 2012) 394 f, 399 f. Without ratification by the local court the decision of the Mufti is not res iudicata and may not be enforced. It follows that a ratified decision of divorce by the Mufti cannot be classified as an extra-judicial divorce like the repudiation before a Syrian sharia court considered by the CJEU in Case C-372/16 Soha Sahyouni v Raja Mamisch [2016] ECLI:EU:C:2017:988. 31 The refusal of a German Court (Oberlandesgericht Frankfurt a. M., 16 January 2006, 1 UF 40/04) to recognise a divorce by the Mufti which had been certified by the first instance court of Rodopi has rightly met criticism, see E Jayme (2008) IPRax, 352. 32 In Brussels II Regulation, the first act of EU family conflicts, Recital 12 states that ‘The grounds of jurisdiction accepted in this Regulation are based on the rule that there must be a real link between the party concerned and the Member State exercising jurisdiction’. 33 See, eg, the provisions on concentration of jurisdiction on matrimonial property regime in the Member State whose courts handle the succession of a spouse or the divorce or legal separation of the spouses in Art 4f of Matrimonial Property Regimes Regulation.

Unification of Private International Law in Family Matters in the European Union  11 The uniform choice-of-law rules follow the approach of Savigny and are also based on a close connection between the parties or the object of the litigation and the law which is designated as applicable.34 The idea of the genuine link, or proximité, is deemed to serve the predictability of the applicable law or the forum and thus to increase legal certainty in cross-border situations within the Union. These objectives are further promoted by authorising the parties to choose the law applicable to their relationship and/or the court which is to decide the litigation. Indeed, the limited admission of party autonomy in specific areas of family law introduces a novel element in EU private international law which will be looked at more closely when the cultural underpinnings of connecting factors will be addressed. It should be mentioned that, where the parties have not designated the forum or the applicable law, the concept of close connection is not referred to as such in the conflict rules of the Regulations. It is not employed as a kind of general clause giving the court discretion as to whether a given element denotes a sufficient connection with the forum or a given law or not. Instead, the conflict rules define the factual, or legal, element which will determine the jurisdiction of a given court or the applicability of a given law.35 However, for the interpretation of these connecting factors, the idea of close connection serves as a guiding light, a leitmotiv, that the Court of Justice invariably follows in its case law on the conflicts Regulations.36

A.  Cultural Impulses for the Choice and the Application of Connecting Factors in Matters of Family Law and Succession i.  Choice of Connecting Factors. Cultural Identity and Party Autonomy When the European legislator was faced with the task of choosing the connecting factors for uniform conflict rules in family matters, there was no predominant approach in the 34 See, eg, Recital 21 of the Rome III Regulation states that the conflict-of-laws rules are introduced ‘on the basis of a scale of successive connecting factors based on the existence of a close connection between the spouses and the law concerned. Such connecting factors should be chosen so as to ensure that proceedings relating to divorce or legal separation are governed by a law with which the spouses have a close connection.’ 35 An exception is provided by Art 26(1)(c) of Matrimonial Property Regimes Regulation according to which the law applicable to the matrimonial property regime in the absence of a choice-of-law by the spouses is, where other connections are failing, the law of the state ‘with which the spouses jointly have the closest connection at the time of the conclusion of the marriage, taking into account all the circumstances’. In matters of jurisdiction, the provisions of several Regulations providing for a forum necessitatis stipulate that the case must have a ‘sufficient connection’ with the Member State seised, see, eg, Art 11(2) of Matrimonial Property Regimes Regulation and Regulation on the Property Consequences of Registered Partnerships; on this condition see P Lagarde, ‘Le for de nécessité dans les règlements européens’ in B Hess, E Jayme, H Mansel (eds), Europa als Rechts- und Lebensraum. Liber amicorum Christian Kohler (Bielefeld, Verlag Ernst und Werner Gieseking, 2018) 255, 259 f. 36 cf Case C-83/17 KP v LO [2018] ECLI:EU:C:2018:408, where the Court interpreted Art 4(2) of the 2007 Hague Maintenance Protocol, which does not contain a connecting factor, as requiring a sufficient connection between the law designated by that provision and the familiar situation during the period for which maintenance was claimed. In a combined interpretation of the Protocol and the Maintenance Regulation, the Court held that in a situation in which the maintenance creditor, who has changed his usual residence, has brought before the courts of the state of his new habitual residence a maintenance claim against the debtor in respect of a period in the past during which the creditor resided in another Member State, the law of the forum, which is also the law of the state of the creditor’s new habitual residence, can apply provided the courts of the Member State of the forum had jurisdiction to adjudicate on the disputes concerning the parties and as to the maintenance relating to that period.

12  Christian Kohler law of the Member States that could facilitate that choice. Indeed, despite the advancement of the habitual residence in national conflicts law and international conventions, nationality remained a traditional connecting factor in the majority of European countries, not only for choice-of-law purposes, but also for rules on jurisdiction. However, although each of these factors may denote a close connection, the use of nationality as a prominent connecting factor in European conflicts legislation seemed somewhat problematic in the light of the general principle prohibiting discrimination on grounds of nationality. Instead, connecting matters of personal status to the habitual residence of the person or persons concerned fitted better with the general philosophy of the internal market. That philosophy, an essential part of the culture of integration, favours the mobility of persons which the rights of free movement of Union citizens have made possible. To connect the elements of personal status to the law of the place where the Union citizen is ‘established’ corresponds to that logic. Thus, the law of the Member State of the habitual residence is the prime connecting factor for conflict rules in matters of personal status of the mobile citizen. However, that choice does not take into account that in many cases the Union citizen (and the third-country national established in the Union) wishes to keep the links with his or her country of origin. In fact, mobility may even be encouraged if the citizen has the certainty that his personal status is firmly rooted in the law of his home country. In that perspective, nationality as a connecting factor is not an alien element of European conflicts law. Even where it appears in the Regulations as an alternative, or second choice, it is rightly viewed as establishing, in its own right and in a non-discriminatory manner, a connection as close as the ties resulting from the habitual residence. Each of the two connecting factors corresponds to different facets of the freedom of movement guaranteed by Union law and, in a number of Regulations, habitual residence and nationality appear as alternative grounds of jurisdiction at the choice of the plaintiff. For the designation of the applicable law on an objective basis, however, a decision as to the connecting factor had to be made. The choice-of-law rules of the Regulations designate the applicable law on the basis of a scale of successive connecting factors starting with the habitual residence of the persons concerned; failing that connection, the law of the nationality of these persons applies and, failing that, ultimately the lex fori. Habitual residence and nationality are not the only significant aspects shaping the conflict rules of the Regulations. It is the Union citizen himself who comes in as an additional element, one might say as the principal factor, essential for the culture of integration and the unification of EU private international law. This leads to the question of whether there is a cultural identity of the European citizen which has to be taken into account in the choice of the connecting factors for the conflict rules in matters of family law. In the nineteenth century, Mancini linked the personal status of the individual to the nazione (not the state) to which he belonged, the constitutive elements of a nation being the region, the race, the language, the customs, the history, the laws and the religion.37 Nazionalità and cultural identity were synonyms, and the later use of nationality

37 PS Mancini, ‘Della nazionalità come fondamento del diritto delle genti’ (1873) Diritto internazionale 27. See also Art 6 of the Preleggi to the Italian Civil Code of 1865: ‘Lo stato e la capacità delle persone ed i rapporti de famiglia sono regolati dalla legge della nazione a cui esse appartengono.’

Unification of Private International Law in Family Matters in the European Union  13 as connecting factor for personal status was a secular expression of that idea, a pis-aller. In the twenty-first century, the mobility of people leads to a fragmentation of individual identities. A change of residence implies a change of identity. However, the starting point retains its importance. Sociologists speak of enracinement dynamique38 and thus describe the tension between the country of origin and the country of residence or, in conflict terms, between nationality and domicile or habitual residence. Neither may claim any preference; it is for the individual to choose the place which corresponds to his identity. For conflict-of-law purposes this means that individuals should be free to choose among the laws of these two places: party autonomy in matters of personal status is the modern expression of cultural identity. Such limited party autonomy has been recognised by the European legislator in the Rome III Regulation and the Regulations on matrimonial property and on property consequences of registered partnerships; it is also granted in the 2007 Hague Maintenance Protocol. The choice-of-law rules of these instruments authorise the parties to choose the law of the habitual residence and the law of the nationality of the parties or one of them. In matters of succession, a person may choose as the law to govern his succession the law of the state of his nationality at the time of the choice or at the time of death. It should be added that party autonomy has also been admitted for the purpose of jurisdiction: some of the Regulations provide for a limited freedom of the parties to choose the court which is to decide their dispute.

ii.  Application and Interpretation of Connecting Factors Although it has been possible to identify rather strong cultural underpinnings of the unification of European private international law, there was little consciousness of these elements on the side of the legislator. In fact, the actual motivation guiding the choice of connecting factors remained in the tradition of a conflicts legislation which, for the determination of the competent court and the applicable law in cross-border situation, looks at the interests of the parties or the administration of justice. When the European Commission presented its 2006 proposal for a recast of the Brussels IIa Regulation, which for the first time included choice-of-law rules, it explained the choice of the habitual residence as primary connecting factor. The Commission stated that this ‘will result in the application of the law of the forum in the vast majority of cases’ and that ‘problems relating to the application of foreign law will therefore be scarce’.39 This is a narrow-minded approach. Where the choice of the connecting factor is guided by the objective to avoid the application of foreign law, the administration of justice in the Member State of the forum may be facilitated but there is no respect for the equivalence of the legal systems linked to a cross-border situation and no consciousness of the cultural elements inherent to the application of foreign law. Thus, the fact that the Commission proposed that the choice-of-law rules should be of universal application, 38 M Maffesoli, Le temps revient. Formes élémentaires de la postmodernité (Desclée De Brouwer, 2010) 127; see the discussion in Kohler (n 25) 404 f. 39 European Commission, Explanatory memorandum to Proposal for a Council Regulation amending Regulation (EC) No 2201/2003 as regards jurisdiction and introducing rules concerning applicable law in matrimonial matters, COM(2006) 399, 17 July 2006.

14  Christian Kohler ‘meaning that the conflict-of-law rule can designate the law of a Member State of the European Union or the law of a third State’,40 appears as an empty promise. However, even where the shaping of the conflict rules was guided by utilitarian aspects cultural elements were always present, unconsciously and as a kind of background noise, sending impulses to the actors in the European legislative process who came from all the Member States and carried with them the heritage, and culture, of the legal system of their country of origin. This is of course also true, mutatis mutandis, when it comes to the application and interpretation of the uniform conflict rules. It is inevitable that cultural issues are present, or become visible, in the interpretation of the Regulations by the CJEU. So far, however, arguments founded on cultural data have not exercised a decisive influence on that interpretation. Two examples may illustrate this proposition. According to the Court’s case law, the concept of habitual residence, the central connecting factor for the jurisdiction of courts in the Brussels IIa Regulation, has to be interpreted not by reference to national law but has to be given an autonomous interpretation. It follows that the Court itself has to shape the contours and the content of that concept, a task that is particularly challenging when it comes to the determination of the habitual residence of a child or an infant. Although the Court refers in the first place to the context of the provisions employing that concept and the objectives of the Regulation, the interpretation necessarily implies a comparative evaluation of the various elements which is not always visible. In a recent judgment the Court confirmed that the habitual residence is the place which, in practice, is ‘the centre of that child’s life’ and: must be established on the basis of all the circumstances specific to each individual case. In addition to the physical presence of the child in the territory of a Member State, other factors must be chosen which are capable of showing that that presence is not in any way temporary or intermittent and that it reflects some degree of integration of the child into a social and family environment.41

In the case at hand all the factors to be taken into account (duration, regularity, conditions and reasons for the child’s stay in the territory of the different Member States concerned, the place and conditions of the child’s attendance at school, and the family and social relationships of the child in those Member States) led to an habitual residence of the infant in Belgium where the parents, a Polish mother and a Belgian father, lived most of the time. To oppose that result the mother pointed to her Polish origin and her continuing family links with Poland where she spent holidays and where the child was christened. In substance, she argued, as did the Polish government before the Court, that her cultural identity was Polish and that her child shared that identity. However, for the Court the fact that the mother was originally from Poland: and that, on that basis, the child shares the culture of that State – as shown by, inter alia, the language in which she mainly expresses herself and the fact that she was christened there – and maintains relationships with the members of her family who are resident in that State42



40 ibid.

41 Case 42 ibid

C-512/17 HR [2018] ECLI:EU:C:2018:513 para 41, referring to the earlier case law. para 52.

Unification of Private International Law in Family Matters in the European Union  15 was not decisive. Neither the cultural identity of one parent nor the cultural ties with the Member State of origin of that parent may outweigh the factual circumstances pointing to another Member State as Lebensmittelpunkt of the child. However, the Court did not exclude that, in other cases, in balancing the criteria for determining the habitual residence of a child in a given case the cultural links of one parent could be pivotal. Indeed, the geographic and family origins of the parent who has custody of the child may become relevant for determining the integration of that parent and, by extension, the integration of the child, into a given social and family environment43

and thus for the habitual residence of the child. The second example relates to the interpretation of the Rome III Regulation which establishes uniform choice-of-law rules for divorce and legal separation. A German court, the Oberlandesgericht München, was faced with the issue whether a divorce of Muslims in Syria had to be recognised in Germany. The husband had by a representative pronounced the divorce formula (talaq) before the sharia court in Syria which had then declared the couple divorced. According to German conflicts law the Oberlandesgericht had to assess the validity of that divorce according to the law designated by the German choice-of-law rules. As the German legislator had repealed the former choice-of-law rules for divorce following the entry into force of the Rome III Regulation, the Oberlandesgericht asked the CJEU whether the Syrian divorce came under the scope of that Regulation. The European Court was not at ease with the reference. It misunderstood the German rules on recognition of private divorces which are concerned with the material validity of the divorce and not with the recognition of the foreign judgment declaring the couple divorced. The Court nevertheless accepted the reference on the assumption that ‘pursuant to German legal practice’ the Regulation was applied for the purposes of the recognition in Germany of a private divorce pronounced in a third country. The CJEU held, however, that a divorce resulting from a unilateral declaration made by one of the spouses before a religious court does not come within the substantive scope of the Rome III Regulation.44 The interpretation leading to that result is firmly grounded in the wording and the system of the Regulation as confirmed by its genesis and may not easily be opposed. It also shows that the Court is in principle prepared to cope with institutions unknown to European legal systems, and it would be unfair to infer from its interpretation of Rome III Regulation that the Court is unwilling to take foreign legal cultures seriously. The Court even referred to recent developments in a number of Member States who introduced into their legal systems the possibility for divorces to be pronounced ‘without the involvement of a State authority’45 but made it clear that the inclusion of private divorces within the scope Rome III Regulation ‘would require arrangements coming under the competence of the EU legislature alone’.46

43 ibid para 53. 44 Case C-372/16 Sahyouni (n 30). 45 See, eg, the private divorce in France (‘divorce par acte sous signature privée’) introduced by the Loi N° 2016-1547 ‘de modernisation de la justice du XXIe siècle’. For a comprehensive overview cf. the contributions in A Dutta et al (eds), Scheidung ohne Gericht? Neue Entwicklungen im europäischen Scheidungsreht (Gieseking, 2017). 46 Para 47.

16  Christian Kohler

B.  Cultural Issues Leading to Exceptions from the Normally Applicable Rules It has already been mentioned that a system of bilateral choice-of-law rules of universal application necessarily implies a relativisation of the position of the forum. However, where the differences between the foreign law applicable under such rules and the law of the forum exceed a certain degree the forum will defend its position by unilateral measures based on its public policy (ordre public). In its negative function, public policy leads to a rejection of the exceedingly different rules of the foreign law which will then be replaced by rules of another law, frequently that of the forum. Negative public policy serves also to shield the forum against decisions of foreign courts which would normally be recognised and enforced. In its positive function, public policy leads to the mandatory application of provisions of the law of the forum which are considered as essential for safeguarding its public interest and which apply irrespective of the otherwise applicable law.47 In matters of family law significant differences between the legal systems of the EU Member States have appeared during the last decades in the field of marriage and civil partnerships. The opening of these institutions to couples of the same sex in a growing number of Member States is in contrast with the position of other Member States which vigorously defend a traditional concept of marriage and protect their legal order as a whole against same-sex unions. Indeed, as has been mentioned before, the strong resistance against same-sex marriages has been has been defended by Member States before the CJEU as a matter of national identity.48 In matters of divorce, differences appear rarely between the laws of the Member States. They are more frequent with regard to the laws of third States where, in particular under the influence of Islamic law, the position of husband and wife is unequal and leads to a discrimination of the wife. The Regulations on divorce and on property regimes of international couples react to these problems, which may amount to cultural clashes, by various, and sometimes novel, means. Outside these fields of family law, problems of discrimination may also arise in the law of succession if the applicable law, again under the influence of Islam, treats female heirs less favourably than male descendants.

i.  Denial of Judicial Protection for Specific Forms of Marriage or Partnership A specific mechanism to shield the forum against undesired legal institutions has been introduced by the Regulations on Matrimonial Property Regimes and on the Property Consequences of Registered Partnerships. Both acts include provisions which authorise a court having jurisdiction under the Regulations to decline jurisdiction if the marriage or the registered partnership in question is not recognised in the Member State of

47 See, eg, the definition in Art 30(2) of Matrimonial Property Regimes Regulation and Regulation on the Property Consequences of Registered Partnerships. 48 On Case C-673/16 Coman e a. see text accompanying n 19.

Unification of Private International Law in Family Matters in the European Union  17 the forum. According to Article 9 of the Matrimonial Property Regimes Regulation, the court may decline jurisdiction if it ‘holds that, under its private international law, the marriage in question is not recognised for the purposes of matrimonial property proceedings’. Article 9 of the Regulation on the Property Consequences of Registered Partnerships provides that jurisdiction may be declined if the court seised ‘holds that its law does not provide for the institution of registered partnership’. This mechanism leads to a denial of judicial protection for issues concerning the matrimonial property regime of same-sex marriages and the property consequences of registered partnerships. However, in both cases, in order to prevent a déni de justice, Article 9 makes provisions for an ‘alternative jurisdiction’ of the courts of other Member States49 either on the basis of an agreement by the parties or under conditions specified in Article 9 itself.50 The protection of the Member State of the forum against the undesired institution is linked to the actual existence of the marriage or partnership in question: Article 9 does not apply where the parties have obtained a divorce, legal separation, or marriage annulment, or a dissolution or annulment of the registered partnership ‘which is capable of being recognised in the Member State of the forum’. In such cases jurisdiction may not be declined, but this leaves it of course open whether the dissolved or annulled marriage or partnership will then be ‘recognised’ for the purposes of matrimonial property proceedings or property consequences of registered partnerships. The Article 9 mechanism has been introduced during the legislative process in order to take account of the position of Member States which are opposed to same-sex marriages or partnerships. However, although that mechanism prevents that the courts of the opposing Member States have to deal with such unions, this could not surmount the concerns of all the Member States in question. Some of them feared indirect consequences of the two Regulations for their legal system and, even more, political pressure at the internal level to adapt their family law to the evolution of society and the law in other Member States.51 As a result, and despite the concessions of the other Member States, a number of Member States maintained their opposition. The required unanimity could not be reached, and enhanced cooperation was the only way by which the Regulations could be adopted.52 A comparable, though nor identical, mechanism had already been introduced in the Rome III Regulation on the law applicable to divorce and legal separation. Here too the position of Member States who did not recognise same-sex marriages was to be taken into account. Article 13 of that Regulation (‘Differences in national law’) 49 ‘Member State’ in the context of Matrimonial Property Regimes Regulation and Regulation on the Property Consequences of Registered Partnerships as well as the Rome III Regulation refers only to Member States participating in the enhanced cooperation under which the respective Regulation has been adopted. 50 Where no court has jurisdiction according to the otherwise applicable rules, Art 11 of the Regulations provide that the courts of a Member State may rule on the case ‘if proceedings cannot reasonably be brought or conducted or would be impossible in a third state with which the case is closely connected’ (forum necessitatis); however, the case must have a sufficient connection with the Member State of the court seised (Art 11(2)). 51 cf J Serdynska, ‘Die Entstehung der Güterrechtsverordnungen – ein Überblick’ in A Dutta, J Weber (eds), Die Europäischen Güterrechtsverordnungen (CH Beck, 2017) 7 f. 52 See Council Decision (EU) 2016/954 of 9 June 2016 authorising enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions on the property regimes of international couples, covering both matters of matrimonial property regimes and the property consequences of registered partnerships [2016] OJ L 159/16.

18  Christian Kohler provides that the courts of a participating Member State whose law does ‘not deem the marriage in question valid for the purposes of divorce proceedings’53 are not obliged ‘to pronounce a divorce by virtue of the application of this Regulation’.54 As the Rome III Regulation does not contain provisions on jurisdiction the point whether the court seised may decline jurisdiction is not addressed. As a result, Article 13 may lead not only to a denial of judicial protection for same-sex couples seeking a divorce but even to a risk of a déni de justice as the applicable rules on jurisdiction of the Brussels IIa Regulation do not contain provisions on ‘alternative’ jurisdiction and do not provide for a forum necessitatis. It should be added that in spite of the introduction of Article 13 a number of Member States maintained their reservations against the uniform choice-of-law rules. As a result, unanimity could not be attained, and the Regulation had to be adopted by way of enhanced cooperation.55

ii.  Defence against Discriminatory Laws in Matters of Personal Status Where the law applicable under the conflict rules of the forum exceedingly differs from the substantive law of the forum or violates core concepts of the forum’s legal order the public policy exception is the traditional defence against the application of that law, and a similar defence applies against the recognition of foreign decisions. For both situations the Regulations considered contain provisions which safeguard the public policy of the forum in case of ‘manifest’ violations.56 However, it should be noted that the use of the public policy exception does not imply a value judgement on the foreign law as such, let alone the foreign legal order on the whole. The object of scrutiny is the concrete application of the foreign law, or recognition of the foreign judgment, and the exception applies only if such application or recognition in the case at hand is incompatible with the public policy of the forum. In matters of divorce and legal separation the public policy exception is not the only means to shield the forum against the application of a foreign law. Article 10 of the Rome III Regulation provides that where the law designated by the spouses or applicable in the absence of a choice ‘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 applies. Article 10 combines both the negative and the positive functions of public policy. It rejects the foreign law and provides for the application of the law of the forum (which, it is assumed, provides for divorce and grants the spouses equal access to it). Article 10 is without prejudice to the public policy exception in Article 12 of the Regulation57 and has to be interpreted independently. It is a concealed value judgement 53 According to Recital 26 of the Rome III Regulation ‘this should be interpreted to mean, inter alia, that such a marriage does not exist in the law of that Member State. In such a case, the court should not be obliged to pronounce a divorce or a legal separation by virtue of this Regulation.’ 54 The same applies if the law of the forum, ie, the law of a participating Member State, ‘does not provide for divorce’; after divorce has been introduced in Malta, that condition has lost its relevance. 55 See Council Decision of 12 July 2010 authorising enhanced cooperation in the area of the law applicable to divorce and legal separation [2010] OJ L 189/12. 56 See, eg, Art 12 of the Rome III Regulation and Art 22 of the Brussels IIa Regulation. 57 See Recital 24 of the Rome III Regulation.

Unification of Private International Law in Family Matters in the European Union  19 on the laws which the provision envisages. Whereas the practical importance of the first alternative is limited, the second alternative has a significant potential. Laws that do not grant one of the spouses equal access to divorce on grounds of sex are to be found in particular in states of the Near and Middle East and Northern Africa where the legislation governing the personal status of Muslims is mainly based on sharia, the traditional law of Islam. With rare exceptions, the laws of these countries do not grant the wife the same right to divorce as the husband,58 and Article 10 has been introduced to make sure that the laws of Islamic countries would not be applied by the courts of the Member States.59 However, in order to mitigate the discriminating aspects of sharia, modern legislation in Muslim countries has improved the position of the wife in various ways, inter alia by giving the wife the right to ask for a divorce under certain conditions and by making provision for compensation.60 Any sweeping condemnation of the laws of these countries falls short as a complete picture cannot be gained by the mere words of the law but has to take into consideration its actual implementation by the courts. In addition, it should not be overlooked that in the multicultural societies of the Middle East ‘[m]ore than religion, it is culture that seems to be a key determinant of women’s status and rights’.61 Before that background it becomes essential whether Article 10 of the Rome III Regulation provides for an assessment in abstracto of the foreign law or may be viewed as a specific public policy exception requiring an assessment of the situation in the instant case. This has indeed become the most controversial issue in the interpretation of that provision.62 The genesis of Article 10 and Recital 24 of the Rome III Regulation support the view that an abstract assessment of the applicable law is sufficient to trigger the application of the law of the forum.63 In a detailed analysis that view has been endorsed by Advocate General Saugmandsgaard Øe in the Sahyouni case before the CJEU.64 In particular, the Advocate General rejected the idea that the interpretation of Article 10 could be narrowed by applying a teleological reduction with the consequence of requiring the foreign law to be discriminatory not only by reason of its content but also in the light of its actual effects in the case at hand.65 The view taken by the Advocate General is most unfortunate. To pass value judgements on foreign laws and legal systems is contrary to the very foundations of a system of private international law founded on 58 The same is true for the traditional Jewish law which requires the letter of divorce (get) to be handed over by the husband. 59 cf E Lein, ‘Art 10 Rome III’ in GP Calliess (ed), Rome Regulations: Commentary (Kluwer Law International, 2015) 4. 60 cf the contribution of E Giunchi, ‘EUFam’s Cases and Issues of Islamic Law’ in ch 3 of this book. 61 See the discussion and the concluding remarks in Giunchi’s contribution (n 60); the quoted remark refers to the situation in Syria. 62 See the discussion and references by Lein, ‘Art 10 Rome III’, and P Winkler von Mohrenfels, Münchener Kommentar zum Bürgerlichen Gesetzbuch, vol 10 (CH Beck, 2018) paras 2–6 and Art 10 Rome III Regulation. 63 Art 10 has been introduced as a concession to Member States to whom the idea that their courts could be faced with the application of Islamic law was unacceptable. Sweden in particular favoured the application of the law of the forum instead of the use of the public policy exception. Despite the introduction of Art 10, Sweden did not participate in the enhanced cooperation. 64 Case C-372/16 Sahyouni (n 30), the Court did not take a position on that point as it held that the Rome III Regulation did not apply at all to a divorce resulting from a unilateral declaration made by one of the spouses before a religious court. 65 Opinion in Case C-372/16 Sahyouni (n 30) para 81f.

20  Christian Kohler the equivalence of the laws connected to a cross-border situation. The unification of European private international law is based on bilateral choice-of-law rules of universal application. To reject the law of a third state because, on an abstract assessment, it is deemed not to conform to European requirements of non-discrimination reveals a parochial and self-serving approach which can be perceived as discriminatory by the states whose laws are concerned. As far as the laws of Islamic countries are concerned there are frequently situations in which their application by the courts of participating Member States can lead to acceptable results, in particular where the wife may ask for a divorce or agrees to it and gets compensation. On the other hand, where instead of the applicable law the lex fori is applied, unwelcome consequences for the wives may result if the ‘European’ divorce is not recognised by the country of origin of the spouses or one of them.66 To conclude, it is submitted that Article 10 of the Rome III Regulation is not a sustainable and future-oriented solution. It is contrary to general principles of private international law which so far have guided the unification of European conflicts law. There is no need for it as the public policy exception in Article 12 guarantees sufficient protection. The latter provision is in line with the approach proposed by the Institut de droit international in its 2005 ‘Resolution on Cultural Differences and ordre public in Family Private International Law’. The resolution notes that ‘the systematic reciprocal exclusion of laws of different cultures by the invocation of public policy fails to take into account the need to coordinate legal systems’ and that ‘the respect for cultural identities has become a goal of international law … which must find an expression in private international law’. The resolution then states that, as a general principle, [p]ublic policy should be invoked against the normally applicable law only to the extent that, in the circumstances of the case, the application of that law would infringe the principles of equality, non-discrimination and freedom of religion.67

IV.  Cultural Challenges Ahead The preceding paragraphs have outlined some of the tensions which the diversity of legal systems and legal cultures brings about in the field of family conflicts law in the EU. There are additional challenges ahead. Cultural issues related to the application of the public policy exception are likely to appear in the law of succession in cases

66 cf J Basedow, ‘European divorce law. Comments on the Rome III Regulation’ in AL Verbeeke et al (eds), Confronting the frontiers of family and succession law. Liber amicorum Walter Pintens (Intersentia, 2012) 135, 149. It is, however, open to doubt whether the reciprocal use of the public policy exception will lead to a satisfactory solution. As noted by Nishitani (n 26, 401), ‘tant le simple universalisme des valeurs occidentales que le simple relativisme culturel ferment la porte au dialogue et à la compréhension mutuelle’. 67 Institut de droit international, Annuaire Vol 71, tome II, Session de Cracovie, 2005 – Deuxième partie 291. The resolution is then concerned, inter alia, with the recognition of divorces pronounced in a foreign State.

Unification of Private International Law in Family Matters in the European Union  21 where a foreign law discriminates between heirs on the basis of sex68 or deprives an heir in whole or in part of his compulsory share.69 In matters of family law the abduction of children frequently leads to cultural conflicts between the Member State of the child’s habitual residence and the Member State to which the child has been wrongfully removed. In addition there are novel issues linked, paradoxically, to a reduction of diversity in the European Union. The withdrawal of the United Kingdom from the EU will significantly change the European legal landscape. In matters of family law, the Brussels IIa and the Maintenance Regulations will no longer be in force for the UK. Judicial cooperation in family affairs will essentially be governed by national conflict rules of the states concerned, ie, in Britain by English and Scottish private international law, supplemented by a few Hague conventions. If that is to be avoided, a comprehensive bilateral convention between the UK and the EU is the only fallback position. However, there are remarkable difficulties linked to such an undertaking. They are not only of a technical nature but include a radical change of approach. What has been highlighted as a ‘return of reciprocal thinking in private international law’70 means in fact a return to the intergovernmental structures of the early twentieth century. The situation will be further complicated by the requirement of unanimity within the EU as a bilateral convention will be a measure concerning family law as envisaged by Article 81(3) TFEU. All this will have serious consequences for cross-border family relations which have developed during almost five decades of free movement in Europe. For the culture of integration this will be a major setback, as British subjects will no longer be Union citizens. But also for the law of the European Union, Brexit will entail important cultural losses also for the law of the European Union. Since the British accession to the EEC, the common law and the legal culture of England and Scotland have become a constituent part of European law and legal thinking.71 ‘It is a tragedy that the great expertise developed in the UK in European private international law – including international family law – will increasingly withdraw from future continental private international law debates and developments.’72 However, the British legacy will not simply vanish after the Brexit. It will remain an integral part of the European legal culture which has developed with the process of integration and will hopefully continue, albeit on an intergovernmental basis, to be a significant factor in the unification of private international law in family matters in Europe.

68 cf M Andrae, ‘Wertungswidersprüche und internationales Erbrecht’ in H Kronke, K Thorn (eds), Grenzen überwinden – Prinzipien bewahren. Festschrift für Bernd von Hoffmann (Gieseking, 2011) 3; the Resolution of the Institut de droit international (n 67) states that ‘States may invoke public policy against foreign succession laws containing discrimination based on gender or religion when assets part of the deceased’s estate were located in the forum State at the time of death.’ 69 See W Pintens, ‘Public policy in succession matters’ in B Hess, E Jayme, H Mansel (eds), Europa als Rechts- und Lebensraum. Liber amicorum Christian Kohler (Bielefeld, Verlag Ernst und Werner Gieseking, 2018) 393, 399 f. 70 A Dutta, ‘Brexit and international family law from a continental perspective’ (2017) Child & Fam LQ 199, 208. 71 cf B Hess, ‘Back to the Past: Brexit und das europäische internationale Privat- und Verfahrensrecht’ (2016) IPRax 409, 418. 72 Dutta, ‘Brexit and international family law from a continental perspective’ (n 70) 211.

22

2 Cross-Border Families and Social Issues: A Sociological Analysis PAOLA BONIZZONI AND LUISA LEONINI

I. Introduction In Western countries, over the last few decades, there has been a growing and rapid diversification of familial forms, due to profound cultural and socio-economic changes. Migrant, mobile and mixed families contribute to this growing diversity, reflected in their particular geographical morphologies (eg, transnational, pluri-local and reunited families) and in their family structures (eg, higher fertility rate and younger average age), as well as in the cultural codes informing their reproductive practices (eg, marriage, fertility, sexuality and contraception, parenting and care). Migrant and ethnic minority families are, however, also profoundly differentiated among themselves, as shown by their mobility patterns (eg, circular vs settled) and their specific social locations (eg, socio-economic positions, occupational niches, nationality, legal security, access to citizenship and mobility rights). While not all migrants are eager to reunite with their families abroad, not everyone, among those who want it, needs the same time and effort to do it; spouses, children and/or elderly parents can be reunited at different stages, or just partially and temporarily re-located abroad.1 Moreover, transnational and reunited families are not only ethnic, but also increasingly mixed families. Marriages cross state borders, and involve citizens, due to tourism, work, study or leisure in different parts of the world. Contemporary migrant and mobile families are, therefore, fluid and complex social formations and the transitions marking every families’ life-course (eg, marriages, divorces, births or retirement) intersect in complex ways with their shifting geographical configurations and the set of rights and regulations to which they are subject.

1 P Bonizzoni, ‘Uneven Paths: Latin American Women Facing Italian Family Reunification Policies’ (2015) 41 JEMS 2001; P Bonizzoni, ‘Here or There? Shifting Meanings and Practices in Mother-Child Relationships across Time and Space’ (2015) 53 International Migration 166; A Fresnoza-Flot, ‘The Bumpy Landscape of Family Reunification: Experiences of First-and 1.5-Generation Filipinos in France’ [2014] J JEMS 1.

24  Paola Bonizzoni and Luisa Leonini

II.  Loving and Caring across Borders: Key Themes in the Literature on Transnational Families The literature on transnational care and parenting has been enriched over the years with several contributions aimed at showing how globalisation had profoundly affected intimate, familial ties.2 As a growing literature on migration and transnationalism has shown,3 the growing spread and affordability of communication and transport has led to a ‘compression’ of space and time that allows an increasing number of people to maintain significant relationships at a distance. Transnational families have therefore emerged as a new category of analysis,4 which further complicates the plurality of contemporary family forms while confirming the increasing disconnection between family and household addressed by contemporary family research. Transnational family life is marked by new rituals (eg, calls and video calls, home visits, family gatherings) and economic exchanges (such as gifts, remittances, etc.) through which families reproduce themselves despite physical distance.5 This literature has shown the advantages that families may gain in being rooted in a plurality of local contexts: for example, earning money in one place and spending in another allows higher levels of consumption, maximises returns (eg, educational or housing investment) and forges pluri-local class positions.6 Sometimes, families can even benefit from the simultaneous participation in different local citizenship regimes (in terms of political and social rights) through the strategic global dislocation of family members.7 Transnational lives are, however, highly diversified and plural: they can last for months or years; they may be lived at different ‘rhythms’ (time spent home and away, frequency of visits and telephone calls, etc.). Transnational lives are also diversified by spouses, parents and children of very different ages, who take part in transnational family practices in very different ways according to age, gender, nationality and class.8 While kinship ties are often kept alive and maintained in spite of great physical distances and prolonged separations, genders and generations do not share the same

2 E Beck-Gernsheim, ‘The Marriage Route to Migration: Of Border Artistes, Transnational Matchmaking and Imported Spouses’ (2011) 1 Nordic Journal of Migration Research 60. 3 S Mahler, MP Smith and LE Guarnizo, Transnationalism from Below (Transaction Publishers, New Brunswick, 1998). 4 DF Bryceson and U Vuorela, The Transnational Family (Oxford, Berg, 2002). 5 L Baldassar, Visits Home: Migration Experiences between Italy and Australia (Melbourne, University Publishing, 2001); J Mason, ‘Managing Kinship over Long Distances: The Significance of “the Visit”’ (2004) 3 SP&S 421. 6 J Mapril, ‘The Dreams of Middle Class: Consumption, Life-Course and Migration Between Bangladesh and Portugal’ (2014) 48 Modern Asian Studies 693; A Weiss, ‘The Transnationalization of Social Inequality: Conceptualizing Social Positions on a World Scale’ (2005) 53 Current Sociology 707. 7 A Ong, Flexible Citizenship: The Cultural Logics of Transnationality (Duke, University Press, 1999). 8 P Bonizzoni and P Boccagni, ‘Care (and) Circulation Revisited: A Conceptual Map of Diversity in Transnational Parenting’ in L Baldassar and L Merla (eds), Transnational Families, Migration and the Circulation of Care: Understanding Mobility and Absence in Family Life (Routledge, 2013); L Baldassar and L Merla, Transnational Families, Migration and the Circulation of Care. Understanding Mobility and Absence in Family Life (Abingdon, Routledge, 2013); J Dreby and T Adkins, ‘Inequalities in Transnational Families’ (2010) 4 Sociology Compass 673.

Cross-Border Families and Social Issues: A Sociological Analysis  25 experiences and expectations in terms of transnational mobility.9 Family migration disproportionately concerns the mobility of ‘tied’, economically (and frequently legally) dependent wives. However, research has also shown that the migration of working mothers (increasingly employed as domestic and care workers in the households of the Global North, and less represented in male-dominated corporate and highly skilled migration) is often accompanied by a radical reorganisation of the household; this reorganisation is due to mothers’ needs to share the care of children with other carers, and who find themselves reciprocally interlocked in ‘global care chains’.10 While fathers’ migration is often understood as a natural expansion of their providing role (with no major effects of stigmatisation or social alarm), mothers’ migration is more frequently associated with new, and potentially conflicting, meanings and practices of care. Indeed, female labour migration entails a ‘stretching’ of motherhood to include breadwinning,11 along with forms of care co-management that rely on non-migrants’ active collaboration. Male labour migration, in turn, is more likely to be associated with a traditional division of family tasks regarding care and livelihood commitments. In either case, the transnationalisation of care obligations and practices may well pave the way for new social understandings of parenthood.12 In this respect, the risks that spatial separations may carry both for the well-being of the children in the country of origin and for their integration in the country of arrival has been the focus of a growing number of studies. It has been shown that the children may suffer an acute sense of loss after their parents’ departure and that at the same time a sense of mutual estrangement may develop between parents and children, which is only partly mitigated by visits and phone calls.13 The ability of the children to take part in technology-mediated communicative exchanges and to communicate directly their needs significantly depends on their age. When substitute caregivers prove to be unable to replace biological parents abroad, this results in poor support for children for affection, nutrition, medical care, schooling, disciplining and control. Against the backdrop of an overexposure to vulnerability that mass media and experts typically depict, the social condition of the so-called ‘children left behind’ should be appreciated in all its diversity. The quality of substitute

9 J Dreby, ‘Honor and Virtue: Mexican Parenting in the Transnational Context’ (2006) 20 Gender & Society 32; RS Parreñas, ‘Transnational Fathering: Gendered Conflicts, Distant Disciplining and Emotional Gaps’ (2008) 34 JEMS 1057; Parreñas, ‘Mothering from a Distance: Emotions, Gender, and Intergenerational Relations in Filipino Transnational Families’ (2001) 27 Feminist Studies 361. 10 B Ehrenreich and AR Hochschild, Global Woman: Nannies, Maids, and Sex Workers in the New Economy (Macmillan, 2003); N Yeates, Globalizing Care Economies and Migrant Workers: Explorations in Global Care Chains (London, Palgrave Macmillan, 2009). 11 MM Asis, S Huang and BS Yeoh, ‘When the Light of the Home Is Abroad: Unskilled Female Migration and the Filipino Family’ (2004) 25 Singapore Journal of Tropical Geography 198. 12 J Carling, C Menjívar and L Schmalzbauer, ‘Central Themes in the Study of Transnational Parenthood’ (2012) 38 JEMS 191. 13 JK Bernhard, P Landolt and L Goldring, ‘Transnationalizing Families: Canadian Immigration Policy and the Spatial Fragmentation of Care-Giving among Latin American Newcomers1’ (2009) 47 International Migration 3; Scalabrini Migration Center, Hearts Apart: Migration in the Eyes of Filipino Children (Manila, Episcopal Commission for the Pastoral Care of Migrants and Itinerant People-CBCP/Apostleship of the Sea, 2004).

26  Paola Bonizzoni and Luisa Leonini care accessible to kids left behind is strongly affected, first, by the socio-demographic profile of caregivers themselves (eg, age, education, employment, etc.). Secondly, and as importantly, substitute care is affected by the kind of relationships that connects them to the kids and to emigrant parents – one often imbued with mutual acquaintance, trust and affection. Several studies have pointed out the difficulties entrenched in long-distance care of dependent relatives: not only children, but also the frail and the elderly. Repeated home visits might be difficult to arrange for people located in very distant countries, due to travel costs, but also due to undocumented status14 or because of care-work reconciliation issues.15 As migrant families find out, their cross-border transactions may create a sort of surreal ‘timelessness’ – a bubble of ‘virtual proximity’, which hinders their perceptions of the changes that involve their significant others and their life circumstances over time. Interpersonal re-meetings, given these premises, often result in a mixed emotional experience – both a desirable and a destabilising experience for the family members involved. The effectiveness of long-distance care practices might prove to be limited in reproducing emotional closeness, especially after long, uninterrupted separations and when they involve very young children or the extremely frail and elderly. Taking part in these transnational exchanges requires cognitive, communicational, technological and economic resources. Moreover, it has been shown how difficult it could be for relatives to invest simultaneously in transnational practices (communications, remittances and journeys) intended to dampen the effects of separation on the one hand and, on the other, in integration processes (savings and investments for return or reunification) intended to put an end to family separation. While the efficacy of visits and communications in maintaining bonds of knowledge, intimacy and affection can by no means be taken for granted, the transnational dispersion of family members, however, may not be strategic, but forced. Hardships in economic integration or restrictive immigration policies may lead relatives to stay apart much longer than desired or expected and constrain transnational forms of social action. Therefore, families in the global age can be conceptualised as increasingly geographically dispersed social units. These social units reproduce themselves by channelling and pooling resources from a plurality of local contexts, commonly across national borders. These ties contribute to the connection of sending and receiving societies, facilitating and triggering further population movement. Also because of that, these transnational social formations are increasingly subject to complex and stratified state regulations and controls.

14 A Fresnoza-Flot, ‘Migration Status and Transnational Mothering: The Case of Filipino Migrants in France’ (2009) 9 Global Networks, 252–70; L Schmalzbauer, ‘Searching for Wages and Mothering from Afar: The Case of Honduran Transnational Families’ (2004) 66(5) Journal of Marriage and Family, 1317–31. 15 P Bonizzoni, ‘Immigrant Working Mothers Reconciling Work and Childcare: The Experience of Latin American and Eastern European Women in Milan’ (2014) 21 Social Politics: International Studies in Gender, State & Society 194; M Kilkey and L Merla, ‘Situating Transnational Families’ Care-Giving Arrangements: The Role of Institutional Contexts’ (2014) 14 Global Networks 210.

Cross-Border Families and Social Issues: A Sociological Analysis  27

III.  Families, Citizenship and Borders: Regulating the Mobility of Families in the EU Across Europe, family-related migration has moved to the centre of public debates about migration and integration, and associated debates about multiculturalism and diversity. In these debates, the migrant family is increasingly considered to be an obstacle to integration, characterised by patriarchal traditions, illiberal practices and problematic gender relations.16 Family migration also derives its political significance from the fact that it has become one of the main (and sometimes the only) legal means to find admission into European countries. Quantitatively, family migration is by far the largest admission channel for third-country nationals in most western and northern European countries. Also in southern European countries, family-related migration is on the rise, even though the high share of family-related admissions have to be seen in the context of large-scale irregular migration and a considerable number of labour migrants through occasional programmes. Because of its quantitative significance, family-related migration is increasingly seen as an unsolicited and, by implication, unwanted migration, characterised by inflows of lesser-skilled ethnic minority members. In this respect, family migration is also seen as contradictory to selective migration policies and migration management. In countries with long-standing histories of immigration, marriage migration (the formation of new families through marriage with partners from abroad) has overtaken classic forms of family reunification involving families already formed and separated by migration. In southern European countries, by contrast, marriage migration is less significant and classic forms of family reunification are altogether more important.17 The increase of marriage migration reflects, on the one hand, the growth of transnational marriages between persons with an immigrant background and spouses from the country of origin, and, on the other hand, the growth of binational marriages between non-migrants and partners from abroad. Underpinned by human rights considerations, granting migrants the right to family reunion has traditionally been justified as promoting the well-being of migrants and their integration into receiving societies. As a right, family reunification has been derived from a conception of the family as a ‘superior good’ that states ought to protect. The establishment of family reunification as a right under European Union law limits the power of states to deny this kind of entry. In the case of refugees, liberal principles further constrain the power of the state to restrict this kind of migration. A fundamental tenet of contemporary migration management is the classification of persons into different categories (short or long-term migrants, citizens of EU Member 16 S Bonjour and A Kraler, ‘Introduction. Family Migration as an Integration Issue? Policy Perspectives and Academic Insights’ (2014) 36 JFI 1407; E Kofman, S Saharso and E Vacchelli, ‘Gendered Perspectives on Integration Discourses and Measures’ (2013) 53 International migration 77; A Kraler, ‘A Liberal Paradox: Expanding Rights, Reducing Access? Contemporary Patterns of Family Migration Policies in the EU’, Migration, Familie und Gesellschaft (New York, Springer, 2014). 17 M Ambrosini, P Bonizzoni and A Triandafyllidou, Family Migration in Southern Europe: Integration Challenges and Transnational Dynamics: An Introduction (Abingdon, Taylor & Francis, 2014).

28  Paola Bonizzoni and Luisa Leonini States, citizens of the European Economic Area, citizens of other privileged states, refugees, etc.) and the related differential allocation of rights that go along with these status positions. In the context of family migration, the ensuing hierarchy of stratified rights or civic stratification results in highly differential rights to family reunification. Thus, rights to family reunion are not equally enjoyed by all migrants; rather, they are highly dependent on the legal status of those seeking family reunion. As a consequence of these processes, a complex, stratified geometry of family migration regimes is taking shape. Different degrees of rights and controls are assigned to specific nationalities, skilled/unskilled workers, students, temporary, migrants, long-term migrants and so on. Family migration rights are, in turn, not only unevenly bestowed, but also unequally accessed by different categories of non-citizens, according to their gender, sexual orientation, education or skills, and economic resources. In regulating family-related migration, states do not just exercise a quantitative control over migration. Rather, state regulations actively construct and condition the family, by distinguishing migrants eligible for admission from those who are not, and by defining a variety of conditions prospective immigrants have to meet.18 The symbolic relevance of supposedly proper forms of kinship, sexuality and reproduction for citizenship and nation-building is not new. Practices such as same-sex marriage, abortion and assisted conception have often played a key role in the reproduction of and contention within national identities. In an era of intensified population movement and increasingly restrictive and selective border control, proper family relationships have become central for channelling access to membership, residence and welfare rights.19 Contemporary immigration policies tend to depict the ideal migrant as either highly skilled or (at best) temporary and circular, posing few risks in terms of both economic integration and social cohesion. Therefore, family migration becomes the source of scrutiny and suspicion. European debates around marriage migration are, in this respect, especially imbued with ‘sexual democracy’20 concerns raised by Islamic alterity21 and troubling family practices, including polygamy, marriages between cousins, and arranged transnational marriages.22 Especially troubling for older receiving states (such as the Netherlands or the United Kingdom) is the intergenerational reproduction of transnational marriage practices by second and third generation youth. These marriages are considered not only (as much of the debate on the so-called mail

18 E Strasser et al, ‘Doing Family Responses to the Constructions of “the Migrant Family” across Europe’ [2009] The History of the Family. 19 C Lee, Fictive Kinship: Family Reunification and the Meaning of Race and Nation in American Migration (London, Russell Sage Foundation, 2013). 20 É Fassin, ‘National Identities and Transnational Intimacies: Sexual Democracy and the Politics of Immigration in Europe’ (2010) 22 Public culture 507. 21 J Surkis, ‘Hymenal Politics: Marriage, Secularism, and French Sovereignty’ (2010) 22 Public Culture 531. 22 K Charsley and A Liversage, ‘Transforming Polygamy: Migration, Transnationalism and Multiple Marriages among Muslim Minorities’ (2013) 13 Global Networks 60; J Cole, ‘Working Mis/Understandings: The Tangled Relationship between Kinship, Franco-Malagasy Binational Marriages, and the French State’ (2014) 29 Cultural Anthropology 527; H Wray, ‘An Ideal Husband? Marriages of Convenience, Moral GateKeeping and Immigration to the UK’ (2006) 8 European Journal of Migration and Law 303; H Wray, ‘Moulding the Migrant Family’ (2009) 29 Legal Studies 592.

Cross-Border Families and Social Issues: A Sociological Analysis  29 order brides suggests) as a matter of gender inequality and female victimisation,23 but as a lack of loyalty and cultural integration. Good and acceptable families are distinguished from the sham and unacceptable ones through a series of techniques,24 including proofs of self-maintenance as well as surveillance practices (from couple interviews to requests for proof of extended cohabitation). The search for authenticity in intergenerational relationships has, for instance, led to increased use of DNA-testing,25 revealing a process of geneticisation of the family and devaluing those same social and caregiving ties which have gained increased relevance and recognition in most receiving countries’ legal and socio-cultural understandings of family life. European states have also introduced specific measures, such as raising the minimum age of sponsoring spouses, banning cousin marriages26 or raising the minimum income required of sponsors. While these policy interventions had been implicitly targeted at selected immigrant communities (such as North Africans and South Asians) and justified as means to protect ethnic youth from forced marriages (and women from patriarchal relationships), they ended up affecting a much wider population segment, including EU citizens.27 Even where the governance of family migration is less strongly marked by worries about culturally incompatible marriage practices, states are often engaged in securing borders against uncontrolled inflows of migrants perceived as ‘low quality’. In this respect, economic and integration-related requirements28 not only protect receiving states from a flow of supposedly inactive, unskilled and welfare-dependent population, but also contain and indirectly select family migrants according to their education and skills.29 Shifts towards low-skilled labour migration management through temporary migration schemes can be understood, in this sense, as a form of reproductive governance30 allowing states to deflect social reproductive costs while creating an unattached class of cheap and flexible workers that can be discarded when no longer required. At the same time, generous family migration rights can instead be used as tools to attract and favour the long-term settlement of a supposedly highly mobile qualified workforce.31

23 N Constable, Romance on a Global Stage: Pen Pals, Virtual Ethnography, and ‘Mail-Order’ Marriages (Univ of California Press, 2003). 24 AM D’Aoust, ‘In the Name of Love: Marriage Migration, Governmentality, and Technologies of Love’ (2013) 7 International Political Sociology 258. 25 T Heinemann and T Lemke, ‘Suspect Families: DNA Kinship Testing in German Immigration Policy’ (2013) 47 Sociology 810. 26 LS Fair, ‘“Why Can’t I Get Married?” Denmark and the Twenty-Four Year Law’ (2010) 11 Social & Cultural Geography 139; M Rytter, ‘“The Family of Denmark” and “the Aliens”: Kinship Images in Danish Integration Politics’ (2010) 75 Ethnos 301. 27 NT Fernandez and TG Jensen, ‘Intimate Contradictions: Comparing the Impact of Danish Family Unification Laws on Pakistani and Cuban Marriage Migrants’ (2014) 40 JEMS 1136. 28 E Kofman, ‘Family Migration as a Class Matter’ (2018) 56 International Migration 33; A Sirriyeh, ‘“All You Need Is Love and Pounds 18,600”: Class and the New UK Family Migration Rules’ (2015) 35 Critical Social Policy; A Staver, ‘Hard Work for Love. The Economic Drift in Norwegian Family Immigration and Integration Policies’ (2014) 36 JFI 1453. 29 M Gutekunst, ‘Language as a New Instrument of Border Control: The Regulation of Marriage Migration from Morocco to Germany’ (2015) 20 The Journal of North African Studies 1. 30 H Askola, The Demographic Transformations of Citizenship (Cambridge University Press, 2016). 31 SE Khoo, ‘Sponsorship of Relatives for Migration and Immigrant Settlement Intention’ (2003) 41 International Migration 177.

30  Paola Bonizzoni and Luisa Leonini

IV.  Concluding Remarks The growing number of studies focusing on migrant and mobile families show that during the migratory process, families are often forced to face a series of events that radically transform the way individual members understand and practise their sense of belonging, solidarity and reciprocity. For any migrant, moving entails temporarily physically separating from a dense and extended set of relationships. The role of family networks as facilitators of cross-border mobility is a long-standing theme of inquiry in the migration literature. However, the impact of migration on those who are left behind and the implications of the political regulation of family mobility are emerging themes that have become the focus of more recent streams of research. Family intimacy is a porous zone of experience, thus relationships between insiders and outsiders and defining the family proves critical for both formulating immigration policy and for a better understanding of what immigration means for a nation. This calls for a deeper exploration of the nexus between the governance of national reproduction, citizenship and mobility.

3 EUFam’s Cases and Issues of Islamic Law ELISA GIUNCHI

I. Introduction The settlement in Europe of migrants from Muslim-majority countries and the transnational dimension of their lives have brought to the fore conflicting claims, novel trans-jurisdictional problems and practices that are at odds with public policy. Leaving aside issues of jurisdiction and applicable law, which are analysed by other chapters, in the following pages we will clarify some key sharī’a concepts that have surfaced in the cases and highlight problematic aspects pertaining to the enforcement of sharī’a-based norms by the European courts of law.

II.  Moroccan Legislation and Public Policy Most cases that have been analysed deal with Moroccan nationals, recognise legal acts originating in Morocco and apply the 2004 Moroccan Family Code (Moudawana).1 This law, enacted by the Parliament following the commotion caused by the 2003 Casablanca bombings, greatly ameliorated women’s status in the country. Today, this law is one of the most progressive laws in the Middle East, and only Tunisia and Turkey have laws that are more egalitarian.2 Unlike Turkish legislation (the only one that gives equal rights to men and women within the family), Moroccan and Tunisian legislation remains anchored to an Islamic discourse. However, Morocco’s interpretation of sharī‘a is innovative in its extended use of takhayyur, taljīq and ijtihād. Major components of the 2004 Moudawana include raising the minimum legal age of marriage to 18 for men and women, abolishing the need for a walī (marital tutor), establishing joint responsibility for the family, further 1 Cour d’appel, 10 July 2014, 12/17948; Cour d’appel de Douai, 29 January 2009; Audiencia Provincial Barcelona 12 November 2013 No 777/2013; Audiencia Provincial Barcelona, 19 July 2013 No 5717/2013; Cass, 1ère chambre, 17 December 2008 No 07-15.393 is the only case of child abduction, applying the Brussels IIa Regulation, Art 2-11; Trib Reggio Emilia, sez. I, 22 March 2014. 2 See K Zoglin, ‘Morocco’s Family Code: Improving Equality for Women’ (2009) 31 Human Rights Qarterly 964–984.

32  Elisa Giunchi limiting polygamy and granting women more rights in the negotiation of marriage contracts and in the field of divorce. As the analysed cases applying the Moudawana deal with divorce, we will look in more detail at the norms regulating the dissolution of marriage. The divorce procedures covered by the 2004 law include repudiation (talāq) (Article 82); while recognising talāq, which is no doubt penalising to women, the Moroccan legislator attempted to discourage it. The 2004 law supports repudiated women by establishing that the husband who pronounces talāq owes his ex-wife the delayed dower (if appropriate), maintenance for the ‘idda (the legal ‘waiting period’ following divorce), and the consolation gift, which is assessed based on the duration of the marriage, the financial means of the husband, the reasons for the repudiation and the degree to which the husband has abused his right to talāq (Article 84). Several clauses of the Moudawana set conditions on the validity of talāq to further discourage it. By referring to various legal schools and circumventing established fiqh norms through ijtihād, the law prescribes the following: repudiation is not accepted if pronounced by a man while inebriated, under duress or overwhelmed by rage (Article 90); vows and pledges do not result in repudiation (Article 91); multiple expressions of repudiation pronounced verbally, with a symbolic gesture or in writing, result in only one repudiation (Article 92); repudiation made conditional on doing something or abstaining from something has no effect (Article 93). A variety of options – all taken from fiqh – are also open to women who want to divorce. First, they can petition the court for a talāq if this right has been explicitly delegated to them. Second, women may ask for divorce on several grounds, such as: the husband does not respect one of the conditions in the marriage contract; harm; lack of maintenance; absence, latent defect; abstinence; and abandonment (Article 98). An avenue that is increasingly used to escape an unhappy marriage is that of harm. The Moudawana establishes that failure to respect any condition in the marriage contract constitutes a harm that justifies a divorce request. Through an extensive interpretation of Maliki law, it is established that ‘any ignominious behaviour by the husband or act that causes the wife material or moral harm such that the continuance of the conjugal relationship is rendered unendurable shall be considered a harm justifying a divorce request, and compensation will be paid by the culprit’ (Article 99). Research on the actual functioning of Moroccan courts indicate that proving these grounds is actually quite difficult and can result in lengthy legal battles.3 It is easier for a woman to obtain divorce by mutual consent (Article 114) – though this procedure is rarely used – and by khul‘ (Article 115), a sharī’a procedure whereby the wife pays a compensation to the husband to obtain divorce. According to the prevailing opinion classical Islamic law, khul‘, like talāq, is an extra-judicial act, but Moroccan legislation, like that of most other Muslim-majority countries, has turned it into a judicial act. Although paying a compensation tends to restrict this practice to well-off women, the Moroccan legislator prescribed that women who divorce by khul‘ may recover the sum paid to obtain the divorce if they prove that they acted under duress or as the result 3 F Sadiqi, ‘The Potential Within. Adjudication on Shiqaq (Discord) Divorce by Moroccan Judges’, in E Giunchi, Adjudicating Family Law in Muslim Courts (Abingdon, Routledge, 2014) 124. See also R Zeidguy, ‘Analyse de la jurisprudence’, in M Benradi, HA M’chichi et al (eds), Le code de la famille. Perceptions et pratique judiciarie (FriedrichEbert Stiftung, Fez, 2007) 217–71.

EUFam’s Cases and Issues of Islamic Law  33 of harm caused by their husband. Women can dissolve their marriage without the husband’s consent if ‘delegated divorce’ is included in the contract. Finally, the 2004 Moudawana gives both spouses the possibility to divorce for irreconcilable differences or discord (shiqāq) (Article 94), a practice that has some grounding in Maliki law. In cases of discord, the judge should consider each spouse’s responsibility to fix compensation. It may be interesting here to note that shiqāq has been interpreted by Moroccan courts in an expansive manner so as to include any situation that makes the survival of the marriage difficult, and that affection and mutual respect are mentioned as part of the ‘spirit’ of sharī’a and signs of a solid marriage. Their absence can therefore be considered as justifying a request of divorce.4 Women also have the right to divorce if their husband’s take a wife without their permission (Articles 40–46). Because the Moudawana gives women multiple options to petition for divorce, limits unilateral talāq and includes shiqāq, it does not come as a surprise that in all cases that have been analysed, the European courts do not consider this law to be contrary to public policy, nor has it proved contentious. In one case, Cour d’appel de Douai 29 January 2009 No 07/00200, the parties were two Moroccans and had married at the Moroccan consulate in Lille (France). The Cour d’appel explicitly stated that the Moudawana’s clauses on divorce for discord ‘ne présentent aucune contradiction avec la conception française de l’ordre public international, notamment en ce que chacun des époux peut demander le divorce sur ce fondement’. The court thus attempted to reconcile the spouses, as provided for by the Moudawana, and evaluated the responsibility of each spouse to fix a compensation, again as provided for by the Moudawana. The latter prescribes that the court should appoint two mediators, one from each of the two families. Research indicates that involving mediators may penalise woman, but mediators also make it more likely that the parties will stick to the agreement. Unfortunately, no details are given on the procedure of reconciliation followed by the Cour d’appel de Douai; we are therefore left in the dark as to whether the members of each family were involved, as is usually the case in Morocco, and what were the consequences on the parties involved. In another case involving a Moroccan couple, (Tribunale di Reggio Emilia, sez. I, 22 March 2014) the Moudawana was considered ‘pienamente conforme ai principi fondamentali dell’ordine pubblico’ (that is, ‘fully in conformity with the fundamental principles of public policy’). Unfortunately, no details are given on the case and on the reasoning of the judges.

III.  Syrian Legislation and Private Divorces The enforcement of Syrian law (Syrian law of personal satus (SLPS) of 1953 (No 59/1953, as amended in 1975, 2003 and 2019, and on inheritance issues by Legislative Decree 76/2010) has proved more contentious, because of greater inequality between the spouses and the involvement of religious courts. A few explanations on these two points may be useful here: unlike the Moroccan system, where the judiciary has long been secular, the Syrian legal system provides for a dual judicial system, with separate

4 Sadiqi

(n 2) 126–28.

34  Elisa Giunchi secular and religious courts (shar‘īyya courts). The secular courts hear both civil and criminal matters, while the religious courts hear cases involving personal status, family and inheritance disputes. As to the Syrian legislation pertaining to divorce, the SLPS, which draws from the Ottoman Law on Family Rights (1917) and the Egyptian Laws on Personal Status and Succession enacted between 1920 and 1946, was amended by the Personal Status (Amendment) Law No 34 of 1975 which modified existing norms and added new provisions to increase the legal rights of women. In 2019 further amendments were approved by the Legislative assembly. The law applies to all Syrians, though exceptions are made for Druzes, Christians and Jews, who are granted legislative and judicial autonomy in the field of family law. Accordingly, Catholic women will not be allowed to divorce, while Muslim women will be allowed to do so, albeit under certain conditions. Catholic women have equal inheritance rights, while Muslim women don’t. However, despite legal differences, experts note that all religious communities share a cultural understanding of gender, family relations and correct behaviour. More than religion, it is culture that seems to be a key determinant of women’s status and rights. The SLPS as amended in 1975 recognises various types of divorce, mostly drawn from Maliki law. The husband may divorce by talāq, which forces him to pay the unpaid dower and maintenance; it becomes effective after the ‘iddah has expired and he has not exercised his right to take her back, unless it is the third pronouncement, in which case the divorce becomes irrevocable (Article 87–94).If the pronouncement is uttered while he is intoxicated, disoriented, enraged, under coercion, during grave illness or in order to coerce, talāq is considered to be ineffective. In addition to the repudiation pronounced in front of the judge or by the judge, the possibility exists of an out-of-court ṭalāq, ie, a divorce pronounced outside the court, which is then registered afterwards. This type of divorce, commonly referred to as ‘administrative’ ṭalāq (ṭalāq idārī) is quite popular, but is particularly penalising to women, due to the legal indeterminacy that it is likely to cause. If men do not register the divorce, their wives may not know whether they are divorced or not.5 A second option is that of mukhāla‘a divorce, which can be by mutual consent (mubara’a) or wife-initiated (khul‘), with the husband agreeing to divorce in exchange for her renouncing of some or all of her economic rights.6 Judicial divorce (tafrīq) can also be asked for by the wife on the grounds of: disease or defect, which include insanity and impotence of the husband (Articles 105–08), absence or disappearance, non-payment of maintenance (Articles 110–11) and discord between the spouses causing such harm (ḍarar) as to make cohabitation impossible. In the latter case, proof of harm is required, which can be cumbersome if not impossible. The court will try, in all types of divorce, to reconcile the parties. Only if reconciliation fails will the court decide for divorce. Syrian legislation, like most Middle Eastern laws on personal status, also includes a residual clause: for matters that are not regulated by the codes, reference

5 E van Eijk, Family Law in Syria: A Plurality of Laws, Norms, and Legal Practice, PhD Dissertation (Leiden University, 2013) 139 and 184. The wife is often forced to go to court to obtain clarity on her marital status and enforcement of her financial rights. A divorced wife is entitled to her dower, which includes any part of her (unpaid) prompt dower and her deferred dower. 6 In mubara’a she will renounce her outstanding rights, while in khul‘ she will also return the rights already received, such as the prompt dower.

EUFam’s Cases and Issues of Islamic Law  35 should be made to the Hanafi fiqh, notwithstanding the right of Druzes, Christians and Jews to adjudicate according to their own law issues pertaining to marriage, alimony, annulment of marriage and custody of children. This creates a peculiar situation; judges are expected to apply codified Maliki norms, but should fill any gap in the law by applying the norms of uncodified Hanafi law. The amendments introduced in 2019 furthered women’s rights by establishing that spouses can include in the marriage contract conditions as long as they violate neither sharī‘a nor Syrian law (Article14-1), and by raising the age of both spouses to 18 (Article 16). Women now are also allowed to invalidate their marriage if it was imposed without their explicit consent (Articles 21–22); they can get married without their guardian’s approval provided they are 18 years old (Article 20) and can request divorce if they are abandoned by their husband (Article 111). The SLPS as amended in 1975 is discussed in the case Oberlandesgericht München, 2 June 2015, 34 Wx 146/14. The facts are briefly summarised here: the parties married in Syria in 1999 and later acquired German nationality. They then travelled to various Middle Eastern countries before returning to Germany. In May 2013, the husband obtained through a representative a divorce by talāq in a sharī’a court in Latakia (Syria). Subsequently, his wife signed a declaration acknowledging that she had received all the payments that were due to her under the marriage contract and in conformity with the norms regulating talāq. She thereby released her husband from all obligations to her. He then applied to have the divorce recognised in Germany. His request was granted in 2013 by the court of second instance in Munich, which held that the Rome III Regulation on the law applicable to divorce covered that type of application and that, under that Regulation, the divorce at issue was governed by Syrian law. However, in 2014 the ex-wife contested the recognition of the divorce, claiming that the requirements for its recognition had not been met as the divorce was against German law. She further claimed that she had not received all the USD 20,000, contrary to her previous statement, and that the declaration to give up one’s dower and maintenance was void according to Syrian law. Some explanation of dower (mahr) may be useful. The stipulation of dower in the marriage contract is in Syrian law, as in sharī‘a, a condition for a valid marriage and an obligation for the husband, whether it is specified or not in the contract. It is divided into prompt dower, due to her upon the conclusion of the contract, and deferred dower, due to her at the end of the ‘idda following an irrevocable divorce or the death of the husband. If no contractual agreement between spouses exists on the amount of dower and the contract is not available, ‘proper’ dower as determined by the courts will be payable. A great number of disputes, in Syria as elsewhere in the Middle East, revolve around the question of the dower amount stipulated and paid, and on whether the wife is entitled to part or all of it. In talāq cases, according to Syrian law, the husband owes his wife also post-divorce maintenance for the duration of the ‘idda. The divorced wife may be awarded compensation of up to three years (in addition to the maintenance owed to her during the ‘idda) if the husband’s exercise of talāq is considered by the judge to have been arbitrary. In the case reviewed here, the wife was therefore correct in claiming that neither dower nor maintenance can be forfeited (unless, it may be added, the marriage has not been consummated or she asks for a divorce under the mukhāla‘a procedure, but these

36  Elisa Giunchi points are not relevant to this case). However, the record does not show whether the USD 20,000 allegedly paid by the husband in golden coins were meant as a settlement replacing or subsuming the maintenance owed to her for the waiting period and the deferred dower, or one of them. Additionally, the record is unclear whether the wife intended to give up the additional compensation she may have demanded according to Syrian law. In this case, as in others that have been reviewed, more details would have been useful. The Oberlandesgericht München (OM) rejected her request to annul the decision. The judge held that the divorce in this specific case was not against public policy as she consented to it a posteriori by accepting financial compensation. The wife appealed, and in 2015 the OM suspended the proceedings and submitted to the CJEU some questions concerning the interpretation of Rome III Regulation: first of all, it asked whether or not the scope of Rome III Regulation included private divorce, such as one pronounced before a religious court on the basis of sharī’a. If the answer to this question was affirmative, should the validity of a rule depend on whether the application of the foreign law was discriminatory in abstracto or in the particular case in question? And, if the answer to the second question is affirmative, does the fact that the spouse who was discriminated against consents to the divorce – for instance by accepting compensation – constitute a ground for not applying that rule? On 12 May 2016 in Case C-281/15 Sahyouni the CJEU declared itself incompetent to decide, claiming that it did not have sufficient information to do so. On 29 June, the OM court re-submitted to the court those very questions. Advocate General (AG) Henrik Saugmandsgaard Øe held that the divorce in the case under review ‘was “private” in so far as it was based not on a constitutive decision of a court or other public authority, but on a declaration of intent of one spouse, followed by a declarative act of a foreign authority. He further noted, by referring to the preparatory works of ‘Rome III’ Regulation, that the latter does not cover such kind of divorces.7 It may be useful here to point out that some countries (such as Tunisia, Algeria and Libya) prescribe that all forms of divorce must occur in the courts and by order of the judge. In other countries, some types of divorce – primarily talāq and khul‘, which according to sharī‘a are extra-judicial procedures – become effective when pronounced or when recorded, even if they have not been heard by a judge.8 As mentioned above, in Syria talāqs can be pronounced by the judge or before the judge (an issued divorce), or be out-of-court declarations, or be registered divorces – which are pronounced by the husband and later on registered by a sharī‘a court. The SLPS also allows for registration of proof of marriage and paternity ex post facto, meaning that customary marriages pronounced outside the courtroom can be registered and thus produce legal effects. There are thus several ‘forms of normative ordering’ at work in the domain of Syrian family law and the statutory laws are part of only one order among several.9 7 Case C-372/16 Soha Sahyouni v Raja Mamisch [2017] Opinion by Advocate General Saugmandsgaard Øe delivered on 14 September 2017, ECLI:EU:C:2017:686. 8 JJA Nasir, The Status of Women Under Islamic Law and Modern Islamic Legislation (Leiden, Brill, 2009) 134–35. Even within countries that prescribe judicial procedures, there are situations in which out-of-court talāqs may be considered as valid. Only Tunisia is unequivocal in denying the reception and validity of all out-of-court divorces. 9 Eijk (n 4) 199.

EUFam’s Cases and Issues of Islamic Law  37 The AG further noted that whether access to divorce provided for by the foreign law is discriminatory or not must be assessed in abstracto, and not in the light of the specific circumstances of each case. If the applicable foreign law’s content is discriminatory, it may not be applied, irrespective of its actual consequences. Regarding the fact that the spouse discriminated against consented to the divorce, the AG believed that the rule set out in Article 10 of the Rome III Regulation, which is based on compliance with fundamental values, is mandatory in nature. Therefore, according to the intent of the EU legislators, individuals cannot renounce the protection of their rights in this sphere.

IV. Lebanese Sharī‘a Courts and the Residual Clause Another country where sharī‘a courts decide on issues of personal status is that of Lebanon. The Lebanese legal system is quite a complex one, with laws for Sunni and Shi‘a Muslims, Druzes, Jewish people and various Christian sects. There is no unified code or judicial system. Unlike Christian courts, the sharī‘a courts used by Sunnis and Shi‘as are part of the state: their functionaries, including the shaykhs who act as judges, are state employees. Here, as in Syria, despite differences between the laws applied to members of different religions, inequality between spouses is glaring for all of them when it comes to divorce. While there are many ways for men to get a divorce, few are available to women. Such gap comes up in Cour de Cassation, 23 February 2011 No 10-14101, involving two Lebanese nationals who got married in 1994 in Lebanon and had four kids. At some point the wife and the children joined the husband in France. In 2009, the husband filed for divorce before a Shi‘a court in Lebanon through the talāq procedure and two months later, while the request was still pending, the wife filed for divorce in France. The husband raised the lis pendens exception, which the French judge refused arguing that the proceedings in Lebanon did not respect fundamental French principles, such as equality between spouses and the right to defence. The Cour de Cassation confirmed the decision, holding that the lis pendens exception could not be granted since it would result in having to recognise a decision that in concreto went against ‘l’ordre public international’. Interestingly, no mention was made of the fact that Lebanese courts deciding on family issues are not restricted to codified law but can follow their uncodified body of legal opinions, which gives them wide discretion.10 This feature obviously limits any assessment by European courts of whether the applicable legislation is in abstracto discriminatory and as such is against public policy or not. Jafari fiqh, like the Sunni schools of law, is no unified legal code but rather a cumulative and heterogeneous body of opinions that differ one from the other in many respects. The role of the ‘source of emulation’ in interpreting the law, a unique feature of the Shi’a legal system, further limits the possibility of considering Jafari fiqh as a body of positive laws. Increasingly, in

10 M Clarke, ‘Shari‘a courts and Muslim Family Law in Lebanon’, in E Giunchi, Adjudicating Family Law in Muslim Courts (Abingdon, Routledge, 2004) 32–47; M Clarke, Islam and Law in Lebanon. Sharia Within and Without the State (Cambridge, Cambridge University Press, 2018).

38  Elisa Giunchi recent decades, legislators and judges in several countries resorted to talfīq and ijtihād as a way to circumvent taqlīd (imitation), ie, the need to follow the ‘established’ opinions of a specific legal school. Whether or not courts are sharia or secular, judicial practice has often widened women’s rights within the family by relying on these methodological tools.

V.  Iranian Legislation and Delegated Divorce Iranian courts, which also apply Jafari law to issues pertaining to personal status, apparently display less discretion than Lebanese courts. In the aftermath of the 1979 revolution, Khomeini suspended the existing family law, though the ensuing discretion of courts in interpreting and applying uncodified Jafari law was limited in subsequent decades through a series of laws and amendments. As Ziba Mir Hosseini notes, in Iran, ‘[r]eturn to sharia’ has not been a return to the classical feqh [fiqh] notion of plural and uncodified laws; the judiciary has retained not only many of the legal concepts and laws of the Pahlavi era, but also the notion of a centralised and unified legal system’.11 While the conservative interpretation of sharī‘a that prevailed after 1979 worsened women’s status in society and within the family, a series of laws in subsequent decades reinstated some of the rights that they had enjoyed under the Pahlavi regime. In some cases, these laws even widened women’s status by reinterpreting and readjusting fiqh to the reality on the ground. For example, today Iranian judges are empowered to issue a divorce when women establish that the continuation of the marriage would cause intolerable suffering or hardship (‘usr was haraf). According to Art 1130, ‘[w]hen it is proved to the Court that the continuation of the marriage causes difficult and undesirable conditions, the judge can for the sake of avoiding harm and difficulty compel the husband to divorce his wife. If this cannot be done, then the divorce will be made on the permission of the Islamic judge’. Marriage can also be severed through khul‘ and, drawing on Maliki law, it can be annulled on many grounds, including ill treatment of the wife by the husband, defects in the husband, if they were not known before marriage, his inability or unwillingness to provide for the maintenance of the wife, and hardship. These grounds have to be proved, and courts decide on a case-by-case basis the standards of evidence that are required. As to talāq, it has been made costly for men: the husband who wishes to repudiate his wife has to pay mahr, maintenance for the ‘idda period, and compensation for the ex-wife’s housework. A case that applies Iranian law and raises important issues related to the enforcement and interpretation of sharī‘a-inspired legislation is Oberlandesgericht Hamm, 7 May 2013, 3 UF 267/12. In 2009, the Iranian applicant married in Iran an Iranian woman, who later acquired German nationality. The marriage certificate included, as is standard practice in Iran, several conditions under which the wife was allowed to file for divorce. After the spouses moved back to Germany, where the wife had lived before the

11 Z Mir Hosseini, ‘Sharia and National Laws in Iran’, in JM Otto (ed), Sharia Incorporated: A Comparative Overview of Legal Systems in Twelve Muslim Countries in Past and Present (Leiden, Leiden University Press, 2010) 338.

EUFam’s Cases and Issues of Islamic Law  39 marriage, the husband appeared to be violent and offensive. The wife filed for divorce in 2012 and the court of first instance ruled in her favour in application of Iranian law and of the marriage certificate, which allowed her to exercise the option of delegated repudiation (talāq-e tawfīd). The wife argued that both the requirements of the marriage certificate and Iranian law had been violated, as the husband had not paid maintenance for six months and had ill-treated her. The husband argued that the court had violated his right of a fair hearing, as there was no interpreter present; that he was not able to understand the proceedings fully, and that Iranian law has been misinterpreted. Furthermore, he claimed that the requirements for a divorce pursuant to the Iranian Civil Code (IrCC) were not met as he had paid maintenance in the form of gold coins and was not able to pay more than that. Finally, he denied insulting his wife, which is a cause for divorce according to Iranian law. His appeal was dismissed, though the reasoning differed from that of the court of first instance. Among other things, the second instance judge held that the marriage certificate should be interpreted as a choice of law in favour of Iranian law according to Art 5 of the Rome III Regulation because the marriage certificate included numerous principles of Iranian law. Even though the parties did not explicitly choose Iranian law, the wording of the marriage certificate was a strong indication, according to the judge, of their wish to handle family issues pursuant to Iranian law. The judge also held that the ruling on divorce should be upheld for two reasons: first of all, the wife had pronounced a set divorce phrase according to the procedure of talāq-e tawfīd provided for in the marriage certificate and allowed by Iranian law (Articles 1133, 1134 IrCC), in the presence of two men during the first instance proceedings in Germany; second, several of the conditions for divorce inserted in the marriage certificate (six months of no maintenance payments, ill treatment by the husband, and no sincere wish on his part to uphold the marriage) were fulfilled. It may be useful here to spend a few words on what is delegated repudiation according to sharī‘a and to Iranian law. Since the Muslim marriage is a contract, the spouses can negotiate and insert conditions into the marriage if they do not contradict the meaning and essence of nikāh (the Islamic marriage). In particular, a man may grant his right of unilateral talāq to the wife in the marriage contract or through a subsequent contract. This right can be either absolute (the wife can use it whenever she wishes), or conditional (its exercise is tied to the presence of a specified condition). Under classical Sunni and Shi‘a law, delegated repudiation is to be exercised without the intervention of the court, while in the legislation of the contemporary world it usually requires the intervention of relevant authorities, which are mostly courts. While the insertion of stipulations is de facto controversial and considered as a source of shame in many Arab communities, there is less resistance to it in Iran.12 Article 1119 of the 1982 IrCC establishes that:

12 To be more precise, in Jafari law, which inspires the Iranian Code, a man cannot technically delegate the power of divorce, which remains exclusively his, but he can grant agency to his wife or a third person to act on his behalf.

40  Elisa Giunchi The parties to the marriage can stipulate any condition to the marriage which is not incompatible with the nature of the contract of marriage, either as part of the marriage contract or in another binding contract: for example, it can be stipulated that if the husband marries another wife or absents himself during a certain period, or discontinues the payment of cost of maintenance, or attempts the life of his wife or treats her so harshly that their life together becomes unbearable, the wife has the power, which she can also transfer to a third party by power of attorney to obtain a divorce herself after establishing in the court the fact that one of the foregoing alternatives has occurred and after the issue of a final judgment to that effect.

In theory, these stipulations, which are printed in every marriage contract, are not valid unless they bear the signature of the husband under each clause. In practice, as Ziba Mir Hosseini notes, irrespective of his signature, the judge can compel the husband to pronounce talāq or effect it on the husband’s behalf if the continuation of marriage is thought to entail hardship for the wife.13 The reasoning by the German court is problematic, at least on the basis of the limited information we are given in the transcription, for two reasons. First, for a repudiation and its delegated version to be valid according to Iranian law, two adult male Muslims of good character (meaning honest, with no criminal precedents) must be present when the pronouncement is made. Article 1134 IrCC states that ‘[t]he divorce must be performed in the actual form of utterance and in the presence of at least two just men who must hear the actual form of divorce’. Presumably, she will also need the same kind of evidence.14 The court records mention that she divorced herself on his behalf before two witnesses, but do not state whether they were male, honest, with no criminal precedents and Muslim. This is relevant because should the witnesses in this specific case not have the characteristics called for by Iranian law, the divorce could presumably be invalidated. Second, as the marriage contract under Iranian law does not give the wife an unconditional right of repudiation, the judge’s decision on the conformity of this practice to public policy is debatable. We have mentioned that the judge may consider the absence of the husband’s signature below the stipulations as irrelevant. Yet, the wife has to prove the non-fulfilment of the conditions stipulated in her marriage contract. The other avenues open to a wife who wants to divorce are equally difficult: she has to prove harm or other grounds (physical problems hindering intercourse, lack of maintenance, ill treatment, madness, etc.); or she can offer him some inducements, by means of either khul‘ or mubara‘a, which is not an option for many women. The ease with which the man can divorce is much greater: ‘A man can divorce his wife whenever he wishes to do so’ (Article 1133), if it takes place in the presence of ‘two just men’, and the utterance of repudiation can be even performed by his attorney. In Iran, khul‘, as prescribed by the majority positions of fiqh, needs to have the consent of the husband. In the legislation of some countries, however, such as that of

13 Z Mir Hosseini, ‘The Delegated Right to Divorce in Iran and Morocco’, in L Carroll and H Kapoor, Talaq-i-Tafwid: The Muslim Woman’s Contractual Access to Divorce: An Information kit (Women Living Under Muslim Laws, 1996) 130. 14 I was, however, unable to find any relevant rule on this either in Iranian legislation or in classical Islam.

EUFam’s Cases and Issues of Islamic Law  41 Egypt (Law No 1 2000), and Algeria (Ordinance No 05-02 2005)15 divorce through khul‘ can be obtained without his consent, provided that the wife agrees to forfeit at least part of her financial rights. The Pakistani judiciary has long decided along ­similar lines. There have been some cases also in Iran in which a divorce by khulʿ has been pronounced by the court without the husband's consent. The decision has been justified by referring to a fatwā, of an ayatollah.16 There is no doubt that this practice is penalising to women. Besides being costly for women, jurisprudence shows that men wanting to divorce often pressure their wives to demand a khulʿ instead of pronouncing a talāq as this is more beneficial to them in economic terms. Men may also ask for very high compensation, effectively blocking the procedure in those cases in which the wife does not have private means of sustaining herself or a supportive family. In some cases, the compensation can be granted in the form of family settlements, typically including the loss of custody rights of children.

VI.  Algeria’s Cautious Approach The procedure of khul‘ has come up only once in the cases analysed. In the rather succinct transcription of Tribunale di Torino, 23 January 2017, we are told that two Algerian nationals were declared divorced in 2015 through the procedure of khul‘ by the Tribunal of Orano (Algeria). This Tribunal also awarded the mother the custody of their three children, two of whom were minors. A few years later, the mother applied to the Tribunal of Torino (Italy) for the modification of the divorce conditions and asked to be awarded the family home. The Court of Torino dismissed her application as she had not produced any evidence that the divorce decision pronounced in Algeria had become final. In Algeria, khul‘ divorces cannot be appealed before the Court of Appeal (Article 57 of Algerian Family Code), but they can be appealed before the Algerian Supreme Court by virtue of Art 349 Algerian Civil Procedural Code. It may be noted here that expecting the applicant to provide evidence that divorce by khul‘ has become final does not take into account the hurdles faced by Algerian women who use this procedure. Additionally, this request does not take into account that Algerian law prescribes in no ambiguous terms that divorced women and their children have the right to stay in their former conjugal homes, at least until the former husband has provided suitable accommodation.17 On women’s rights, the Algerian jurisprudence is, however, ambiguous. This may not come as a surprise: women’s rights are rather controversial in a society as polarised as that of Algeria. Unlike what has happened in Morocco, where reforms improving women’s rights within the family met little resistance, partly because they originated from a monarchy that is religiously legitimate and within a society that is quite homogeneous, in Algeria, where because of its history the legitimacy of the 15 N Sonneveld, Khul‘ Divorce in Egypt: Public Debates, Judicial Practices, and Everyday Life (Cairo, American University of Cairo Press, 2012). 16 N Abiad, Sharia, Muslim States and International Human Rights Treaty Obligations: A Comparative Study (London, BIIICL, 2008) 168. 17 N Abiad, Sharia, Muslim States and International Human Rights Treaty Obligations: A Comparative Study (London, BIIICL, 2008) 168.

42  Elisa Giunchi government and the very identity of the state are more controversial, there is much less consensus on women’s status. Therefore, reforms have been piecemeal and contested, and the ­judiciary has adopted a cautious approach. The emphasis on Islam as the hallmark of national identity, coupled with rising Islamism and Saudi influence in the 1970s and 1980s in the context of unrest due to welfare cuts, resulted in a family code (Law No 84 of 9  June  1984) that reflected the gender asymmetries of Islamic classical law more than the ­legislation of neighbouring countries. In 2005 (ordinance no 05-02 of 27  February  2005), under Boutelflika, the government reformed family law ­‘conformément à l’esprit des droits de l’homme et de la charia’, prescribing that divorced women with children must be provided, as already mentioned, decent accommodation and the right to stay in their former conjugal homes until that moment;18 the ordinance also outlawed forced marriages, further constrained polygamy and did away with the requirement that women must obey their husbands. However, the concept of walī, the male guardian, was re-affirmed, even for adult women, and overall, Algerian family law remains skewed in favour of the husband.

VII.  Concluding Remarks The transcripts that have been analysed are often too succinct to allow us to fully understand the cases that are decided and the reasoning followed by the judges. However, two general observations can be made. First, as far as can be assessed based on the limited number of cases analysed, in Europe the judiciary, while referring to the law in the books, does not pay attention – nor could it realistically do so – to the way in which laws are implemented in Muslim countries. By not contextualising the legal rules it applies it misses of out on the versatility and complexity of sharī‘a-based legal systems. It ignores in particular that in Muslim-majority countries non-legal norms and extra-judicial facts play an important role in the judicial process and in its outcome. For example, litigation is often used as a strategy to achieve a goal, or to put pressure on a specific family or group, and filed cases are dropped once the goal is achieved or pressure has borne its intended effects. Out-of-court attempts of arbitration by the families of the litigants are often a key element.19 The versatility of personal status law may worsen the legal position of women and children, especially in divorce cases. However, it may also benefit them, for example by allowing the judges to circumvent the letter of the law in order to legitimise children born out of wedlock and to allow women to escape unhappy marriages.20 By ignoring

18 Art 72: ‘En cas de divorce, il incombe au père d’assurer, pour l’exercice de la garde, à la bénéficiaire du droit de garde, un logement décent ou à défaut son loyer. La femme ayant la garde est maintenue dans le domicile conjugal jusqu’à l’exécution par le père de la décision judiciaire relative au logement’: Ordonnance N. 05-02, 27 février 2005 modifiant et complétant la loi N. 84-11 du 09 juin 1984 portant code de la famille, https://www.ciddef-dz.com/pdf/les-lois/loi1-le-nouveau-code-de-la-famille.pdf 19 Sonneveld (n 14) 128; E Giunchi, Radicalismo islamico e condizione femminile in Pakistan (Torino, Harmattan, 1999); Eijk (n 4) 183. 20 See the essays in E Giunchi, Adjudicating Family Law in Muslim Courts (Abington, Routledge, 2013).

EUFam’s Cases and Issues of Islamic Law  43 the law in practice, European courts fail to see that the actual interpretation of sharī‘abased norms often goes to a great length to accommodate practical and social realities as well as women’s aspirations. Referring only to legal codes, in addition to making judges blind to the actual enforcement of laws, makes it difficult to decipher the conflicting legal, cultural and religious claims made by the litigants. Another observation that can be made is that any assessment of inequality in abstracto fails to take into consideration that legislation on family law in Muslim countries usually contains a ‘residual’ clause allowing the judges to refer to uncodified Islamic injunctions (ie, a specific legal school, or fiqh in general, or sharī‘a, depending on the country) if the law is silent or ambiguous on a specific issue. These clauses are particularly relevant as legislation on personal status law in Muslim-majority countries, having to take into consideration religious sensitivities and polarised societies, often does not provide clear guidance as to how to resolve particular issues and thus leaves ample room for interpretation. Residual clauses open the door wide to the rich and heterogeneous collection of Islamic jurisprudence, to which judges – both secular an religious – in Muslim-majority countries willingly resort. Judges’ discretion, which has been largely used in recent decades to expand women’s rights, is compounded by an extensive use of ijtihād to circumvent majority positions of fiqh.

44

part ii Scope of the EU Family Law Regulations

46

4 Preliminary Questions THOMAS PFEIFFER AND JOSEF WITTMANN

I. Introduction The legal phenomenon of preliminary questions arises particularly frequently in the area of International Family Law as it involves the validity of legal status and its consequences. There is no parental responsibility without parenthood; no divorce without marriage. However, the European legislature has not provided any rule addressing the interrelation between preliminary and main questions. Pertinent EU Regulations identify the applicable law on matters such as parental responsibility or maintenance only in isolation, not with regards to relevant preliminary questions. In essence, it has to be decided whether the law applicable to the preliminary question shall be determined by the conflict-of-law rules of the forum (lex fori) or by the conflict-of-law rules of the law applicable to the main question (lex causae). This short contribution starts with defining the legal categories relevant in the discussion on preliminary questions in Private International Law (II). Then the possible approaches for determining the law applicable to preliminary questions are presented (III). The following analysis concludes that both in areas of harmonised and non-harmonised Private International Law the so-called ‘independent reference’ is preferable (IV). The contribution ends with a short summary (V).

II.  Definition of Terms A.  Preliminary Questions In certain cases the legal solution to a matter of family law (the ‘main question’) requires addressing the existence or non-existence of a preliminary legal relationship (the ‘preliminary question’). One example is the validity or non-validity of a marriage as preliminary question in relation to a divorce. Other typical examples can be found in maintenance law since maintenance requires the existence of a certain family relationship such as marriage or descendance.

48  Thomas Pfeiffer and Josef Wittmann

B. Sub-Questions A clear distinction must be drawn between preliminary questions and so-called ‘sub-questions’. Sub-questions, like preliminary questions, have prejudicial significance insofar as the provision applied to the main question includes the sub-question as a legal requirement. However, the sub-question differs from the preliminary question as it has no independent significance. A sub-question can only be posed as a prerequisite to another legal relationship. For instance, the contractual capability or – in the context of family law – the marriageable age unfolds its legal effects only with regard to the validity of a contract, respectively, a marriage. In this respect, it is widely recognised that the law applicable to the sub-question is determined by the conflict-of-law rules of the forum.1

III.  Possible Solutions By contrast, the method for determining the law applicable to preliminary questions is highly controversial. As laid out above, two options are discussed: –– applying the conflict-of-law rules of the lex fori (so-called ‘independent reference’); or –– applying the conflict-of-law rules of the lex causae (so-called ‘dependent reference’). Before starting the observation, it must be considered that, in a comparative perspective, the lex fori approach constitutes the general rule. In cases that do not involve preliminary questions, courts in all Member States apply their own (national or EU) conflict-of-law rules; ie the Private International Law of the forum.

A.  Independent Reference Upholding the aforementioned rule also in international cases which involve preliminary questions is based on the idea of national or internal harmony. This means that, within one forum, the national conflict-of-law rules always determine the law applicable to a certain matter – regardless whether it is raised as a preliminary or a main question. As an example, under this approach, a German judge, in order to determine the validity of a cross-border marriage, would always apply Art 13 EGBGB (introductory act to the civil code),2 no matter whether this issue comes up in a divorce proceeding (as preliminary question) or in a declaratory action on the mere existence of the marriage (as main question). Differing decisions depending on the substance of a case are avoided.

1 cf C Bernitt, Die Anknüpfung von Vorfragen im europäischen Kollisionsrecht (Tübingen, Mohr Siebeck, 2010) 9. 2 Art 13 Sec 1 EGBGB reads: ‘The conditions for the conclusion of marriage are, as regards each person engaged to be married, governed by the law of the country of which he or she is a national’.

Preliminary Questions  49

B.  Dependent Reference According to the idea of dependent reference, the law applicable to the preliminary question shall be determined by the conflict-of-law rules of the law applicable to the main question. This approach is said to achieve international harmony. Example: A Spanish married couple was habitually resident in Italy. After separating, the husband left for Spain. The wife stayed in Italy. The wife files for divorce in Italy. Variation: The wife files for divorce in Spain. In both scenarios, the courts3 would find Italian law applicable to the divorce under Article 8(b) Rome III Regulation. Now, should it arise that the marriage may not have been validly concluded, the Italian court as well as the Spanish court would have to determine the law applicable to the marriage. Following the lex causae approach, both courts would apply the conflict-of-law rules of the law applicable to the divorce, ie Italian Private International Law. Thus, the dependent reference indeed provides for international harmony. The preliminary question is answered identically in every forum.

IV. Preference A.  Superiority of the Lex Fori Approach in Harmonised Areas Undoubtedly, the independent reference applies in cases in which the preliminary question falls under the scope of harmonised EU Private International Law as this approach not only achieves national harmony but also international harmony within the harmonised area. The disadvantage of the lex fori approach, which might cause differing decisions dependent on the forum, is obsolete once Private International Law is harmonised and thus all courts apply the same conflict-of-law rules. By contrast, applying the conflict-of-law rules of the lex causae might – in cases in which the main question is governed by the law of a non-Member State – foster parallel decisions in relation to non-Member States. However, this approach does not achieve the same degree of both national harmony and harmony within the EU.4 Therefore, it is preferable to apply the lex fori approach, ie to determine the law applicable to preliminary questions independently.

B.  Non-Harmonised Areas If the preliminary question falls under the scope of non-harmonised conflict-of-law rules, a decision between national and international harmony is inevitable.

3 Both competent under Art 3(1)(a) Brussels IIa Regulation. 4 If the law applicable to the main question – unlike the law applicable to the preliminary question – is determined by non-harmonised conflict-of-law rules which, in addition, refer to the law of a non-Member State, differing decisions between Member States are likely.

50  Thomas Pfeiffer and Josef Wittmann

i.  Internal or International Harmony? Some scholars regard the dependent reference as the preferable approach in cases in which the law applicable to the main question – but not to the preliminary question itself – is determined by international conventions or European Regulations as those instruments intend to harmonise decision-making in Member States. This aim would, indeed, be undercut if the courts of every Member State applied their own conflict-oflaw rules with regards to preliminary questions. However, the significance of international harmony might be overestimated. While it is true that the European legislature has underlined its importance,5 international harmony was never deemed the primary objective. Recital 10 of the Rome III Regulation clearly states: Preliminary questions such as legal capacity and the validity of the marriage, and matters such as the effects of divorce or legal separation on property, name, parental responsibility, maintenance obligations or any other ancillary measures should be determined by the conflict-of-laws rules applicable in the participating Member State concerned.

Thereby, it is apparent that international harmony is limited to areas which are explicitly subject to EU regulation. By passing the Rome III Regulation, the EU legislature did not incidentally regulate the law applicable to all prejudicial matters, such as the validity of a marriage. Instead, there remains room for national provisions of Private International Law. So, until full harmonisation of Private International Law is achieved, differing decisions based on national legislation must be accepted. Internal harmony within the single Member States prevails.

ii.  Forum Shopping It has been indicated that the lex fori approach encourages forum shopping as parties could choose the law applicable to the preliminary question by choosing a forum and its conflict-of-law rules. However, like the pursuit of international harmony, the prevention of forum shopping is not a paramount value of EU Private International Law. If anything, the rules on jurisdiction such as the Brussels IIa Regulation allow the parties to choose between different fora and, ultimately, between different conflict-of-law rules. It would be contradictory as well as a challenge of the principle of mutual trust if Private International Law was used to counter party behaviour which is explicitly encouraged under EU rules on jurisdiction.6

iii.  Technical Consideration Finally, the lex causae approach is inconsistent with the Rome Regulations’ exclusion of renvoi. Thereafter, any country’s law determined applicable by these Regulations means the substantive law in force in that country without its rules of Private



5 cf 6 cf

Rome II Regulation, Recital 6. S Gössl, ‘Preliminary Question in EU Private International Law’ (2012) 8 JPIL 63, 72.

Preliminary Questions  51 International Law.7 As the conflict-of-law rules do not even refer to the Private International Law of the lex causae regarding the main question, nothing else can apply with respect to preliminary questions. A deviation from that principle would require an explicit provision to do so, which the European legislature has not provided for.8

V. Summary This contribution calls for a uniform approach for determining the law applicable to preliminary questions. The conflict-of-law rules of the lex fori shall apply (so-called independent reference). This method leads to both internal and international harmony in cases in which the preliminary question falls under the scope of harmonised EU Private International Law. If the preliminary question does not fall under the scope of harmonised Private International Law, differing decisions based on national conflictof-law provisions must be accepted. Internal harmony within the single Member States prevails. Of course, the continuous harmonisation of Private International Law in Europe mitigates the legal relevance of this phenomenon.



7 See

Rome I Regulation, Art 20; Rome II Regulation, Art 24; Rome III Regulation, Art 1.

8 C Raupach, Ehescheidung mit Auslandsbezug in der Europäischen Union (Tübingen, Mohr Siebeck, 2014) 47.

52

5 Matrimonial Matters ROSARIO ESPINOSA CALABUIG

I. Introduction According to the European Commission, there are currently around 16 million international couples in the European Union (hereinafter, EU). That means that cross-border family issues are likely to happen frequently.1 In fact, the statistics show that the number of divorces and separations has increased in the EU in the last few years. For example, Denmark, Latvia, Lithuania and Portugal are the countries with the most divorces per year in the EU.2 At the same time, legal alternatives to marriage have become more widespread and national legislations have changed to confer more rights on unmarried and samesex couples.3 As of 2019, 16 Member States had regulated same-sex marriages.4 This supposes a potential increase of marriages in the EU, and a greater likelihood correlated to this increase of legal separations and divorces in the states where they are possible.5 Taking into account the above, the interest of the EU legislator is justified in providing a uniform response throughout this field with instruments such as the Brussels IIa Regulation. The Brussels IIa Regulation is undoubtedly ‘the cornerstone of judicial cooperation in family matters in the Union’, as evidenced by the Opinion of the European Economic and Social Committee on the Brussels IIter Proposal launched on 2016.6 The Opinion 1 ec.europa.eu/justice/civil/family-matters/index_en.htm. 2 ec.europa.eu/eurostat/statistics-explained/index.php/Marriage_and_divorce_statistics. 3 europa.eu/youreurope/citizens/family/couple/registered-partners/index_en.htm. See N Dethloff, ‘New models of partnership: the financial consequences of separation’ (2011) 12 Journal of the Academy of European Law 89. 4 In particular Austria (2019), Finland (2017), Germany (2017), Malta (2017), Slovenia (2015), Luxembourg (2015), Ireland (2015), United Kingdom (2014, with the exception of Northern Ireland), France (2013), Denmark (2012), Portugal (2010), Sweden (2009), Norway (2009), Spain (2005), Belgium (2003), Netherland (2001). Outside the EU, countries like Canada, South Africa, Norway, Argentina, Brazil, Uruguay, New Zealand and some states of the USA and Mexico also recognise same-sex marriages. 5 More broadly, R Espinosa Calabuig, ‘Cross-border family issues in the EU: Multiplicity of instruments, inconsistencies and problems of coordination’ in V Ruiz Abu-Gnim and MB Noodt Taquela (eds), Diversity and Integration in Private International Law, Edinburgh University Press, 2019, 65–82. 6 Opinion of the European Economic and Social Committee on the ‘Proposal for a Council Regulation on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast)’ (COM(2016) 411 final – 2016/0190 (CNS)).

54  Rosario Espinosa Calabuig itself reflects the current European policy which is more focused on the regulation of ‘matrimonial matters’, with all the limitations that will be explained, than on other types of union. According to the Opinion ‘judicial cooperation between the Member States of the Union must gradually improve and adapt to the reality of an increasing number of citizens throughout the Union who move, get married and have children’.7 Both the aforementioned Opinion and the new Regulation 2019/1111 finally published on 2 July 20198 focus on the rules on child abduction, leaving unresolved many of the limitations and shortcomings of Brussels IIa Regulation as regards the specific ‘matrimonial matters’. There are many doubts, questions, and issues which arise from the Brussels IIa Regulation (as well as the other instruments) regarding their practical implementation by the practitioners and legal professionals in the Member States. It has been – and continues to be – a long process full of difficulties, most of them arising from the legal and sociocultural differences among the different Member States. But there is still a long way to go. Many of these doubts and problems of interpretation derive, in the case of the Brussels IIa Regulation, from the limited scope of application and the meaning of ‘matrimonial matters’. The possible extension of this scope should have been reconsidered in relation to the Brussels IIter. However, the new Regulation has maintained these limitations.

II.  Issues Included and Excluded from the Brussels IIa Regulation By now the Brussels IIa Regulation is strictly interpreted to mean that for judgments on ‘divorce, legal separation or marriage annulment’ (Article 1(1)(a)),9 the Regulation ‘should apply’ only to the dissolution of matrimonial ties and ‘should not deal’ with issues such as the grounds for divorce, property consequences of the marriage, or any other ancillary measures,10 according to Recital 8.11 These limitations can raise problems in countries where the judge is competent to dissolve the marriage and also to rule on the liquidation of the matrimonial property regimes and to fix the new framework of parent-child relationships.12 7 ibid. 8 Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction. 9 It is understood only in cases with foreign elements, according to Audencia Provincial de Madrid, 13 February 2017, in relation to the divorce of two Spanish nationals, one of whom was a resident of Colombia. 10 See M Ní Shúilleabráin, Cross-border divorce law Brussels II bis (New York, Oxford, 2010) 119; U Magnus and P Mankowski (eds), European Commentaries of Private International Law. Brussels IIbis Regulation (Munich, Sellier European Law Publishers, 2012) 27; S Cornelup, Droit Européen du Divorce – European Divorce Law (Paris, LexisNexis, 2013) 195. 11 Nor are maintenance obligations and post-divorce pensions regulated (for example in the Spanish case law judgments of the Provincial Court of Valencia, 14 January 2003; Provincial Court Barcelona, 31 March 2003; Provincial Court of Cádiz, 15 September 2005). See AL Calvo Caravaca and J Carrascosa González, Derecho Internacional Privado, Vol II 17th edn (Granada, Comares, 2017) 275. 12 This is the case, for example, of Spain. See JL Iglesias Buhigues, C Esplugues Mota and G Palao Moreno, Derecho Internacional Privado, 13th edn (Valencia, Tirant Lo Blanch, 2019) 460; B Añoveros Terradas, ‘The Impact and Application of the Brussels II bis Regulation in Spain’ in K Boele-Woelki and C González Beilfuss (eds), Brussels II bis: Its Impact and Application in the Member States (Antwerpen, Intersentia, 2007) 279–95.

Matrimonial Matters  55 It is a limitation which also occurs within the scope of the Rome III Regulation, which only deals with ‘the dissolution or loosening of marriage ties’.13 Consequently other issues that in some Member States are resolved in the same procedure are not contemplated by these Regulations, so they must be resolved by another rule. On the other hand, a procedure of matrimonial nullity initiated by a third party after the death of one of the spouses does fall within the scope of application of Brussels IIa Regulation, as declared by the CJEU in Case C-294/15.14 This is so because the Regulation governs any process of marriage annulment in any instance, even though the marriage has already been dissolved as a result of the death of one of the spouses. Article 3 of the Brussels IIa Regulation does not limit its application to living spouses, but is formulated in a general way, so that a third party or the Public Ministry could request nullification of the marriage in accordance with this precept. Given that the Regulation clearly affects marriage annulment, it should be understood, in short, that it does not exclude matrimonial annulment actions after the death of one or both spouses, so it can be applied to determine the competent court that decides the merits of the case. Other matters that are understood not to be regulated by the Brussels IIa Regulation would be procedures for matrimonial nullity, divorce, or separation that are religious in nature, unless a Member State considers that a religious authority is vested with civil or state power.15 In particular, problems of interpretation have been stressed in relation to private divorces that are not included in the Brussels IIa Regulation’s scope of application as already ruled by the CJEU in Case C-281/15.16 In the follow-up Case C-372/16,17 the Court excluded them from Rome III Regulation as well.18 In this regard, although divorce is a private matter, according to some legal systems, for example Spanish law, it is only possible to get a divorce if a public authority, either judicial or non-judicial (notary), is involved. Therefore, divorce in states as Spain cannot be labelled as private in view of the involved competent authorities.19

13 Recital 10 of the Rome III Regulation. 14 Case C-294/15 Edyta Mikołajczyk v Marie Louise Czarnecka and Stefan Czarnecki [2016] ECLI: EU:C:2016:772. See Iglesias Buhigues, Esplugues Mota and Palao Moreno, Derecho Internacional Privado (n 12) 460; Shúilleabráin (n 10) 122; Cornelup (n 10) 197. 15 See Calvo Caravaca and Carrascosa González (n 11) 275, according to which what Brussels IIa Regulation does not regulate is the legitimacy to exercise the actions of divorce, separation, or matrimonial annulment. It is a matter of substance that is governed by the law applicable to the merits of the case, which will be determined in accordance with the conflict rules of the forum. But it does allow a third party, for example the daughter of one of the deceased spouses, who requests the nullification of the marriage to be able to resolve the succession of the same, according to the aforementioned ruling of the CJEU in Case C-294/15 Mikołajczyk (n 12). 16 Case C-281/15 Soha Sahyouni v Raja Mamisch, order [2016] ECLI:EU:C:2016:343. 17 Case C-372/16 Soha Sahyouni v Raja Mamisch [2017] ECLI:EU:C:2017:988. 18 Supporting the solution of the CJEU see P Diago Diago, ‘Inclusión de los “divorcios privados” en el ámbito de aplicación material del reglamento 1259/2010 del Consejo, de 20 de diciembre de 2010: sentencia del Tribunal de Justicia de la Unión Europea (Sala primera) de 20 de diciembre de 2017, asunto C-372/16, Sahyouni’ (2018) La Ley Unión Europea n. 58. Also supporting the judgment but with interesting critics Alvarez González, ‘Sahyouni más allá del espejo. Un comentario posible a la STJ 20 de diciembre de 2017 (C-372/16), Revista Electrónica de Estudios Internacionales, 2018, 15–20. (www.reei.org). Contrary to the perspective of the Court which favours the inclusion of private divorces in Rome III see for instance SL Gössl, ‘Open Issues in European International Family Law: Sahyouni, “Private Divorces” and Islamic law under the Rome III Regulation’ (2017) EL Forum 68. 19 Accordingly, it is not possible to get access to the Civil Register without first having obtained a judicial resolution or a notarial deed. In the latter case only in those situations where Spanish law allows divorce before a notary, i.e. when no minors or incapacitated persons are involved. Cf Art 82(1), 83, 87 and 89 of the Spanish

56  Rosario Espinosa Calabuig

III.  Notion of Marriage The definition of ‘marriage’ is not among the definitions of Article 1 of Brussels IIa Regulation despite it being a fundamental term for the entire Regulation.20 The specific definition of marriage is essential, since it is a ‘preliminary question’ to divorce, separation, or matrimonial annulment.21 The question of whether or not there is a marriage arises in relation to cases such as polygamous marriages, marriages between persons of the same sex, revocable marriages, temporary marriages, marriages between minors, civil unions, registered or unregistered partnerships. The concept of marriage triggers also questions in relation to matrimonial property regimes. Article 9 of the Matrimonial Property Regimes Regulation, that entitles the seised judge to inhibit, depends on this concept. Recital 21 of this Regulation says that national private international law should be applied first. This concerns not only samesex couples, but also convenience marriage, of involving a child, polygamy, etc.22 In particular, Article 9 of the Matrimonial Property Regimes Regulation seeks to protect the domestic concept of marriage. According to Article 9(1) and by way of exception, if a court of the Member State that has jurisdiction pursuant to the Regulation (Articles 4, 6, 7 or 8 of the Matrimonial Property Regimes Regulation) holds that, under its private international law, the marriage in question is not recognised for the purposes of matrimonial property regime proceedings, it may decline jurisdiction. There is only one case in Article 9(3) Matrimonial Property Regimes Regulation that exempts the judge from that possibility and it is the partners providing a divorce judgment issued in another jurisdiction (res iudicata): ‘This Article shall not apply when the parties have obtained a divorce, legal separation or marriage annulment which is capable of being recognised in the Member State of the forum’. In this case, the seised judge cannot inhibit, but accept that there was both a valid marriage and a divorce in another jurisdiction. This gives rise to another issue, that of how to apply recognition and jurisdiction rules.23 Together with these comments the concept of marriage has provoked the most conflict interpretation in relation to marriages between people of the same sex and registered partnerships.24 Civil Code; Art 54(1) of the Spanish Law of the Notaries; Art.1 of Spanish Regulation on the organisation and legal regime of the notaries and Art 61 of Spanish Law of the Civil Registry, inscription of separation, nullity and divorce. It is important to explain this point due to some mistakes made in relation to it in other countries. 20 See Shúilleabráin (n 10) 105; Cornelup (n 10) 200; Boele-Woelki and González Beilfuss (n 12) 28. 21 Calvo Caravaca and Carrascosa González (n 11) 275. 22 However, there are countries such as Spain without conflict rule on marriage validity. Thereby Art. 107 (1) of the Spanish Civil Code on marriage annulment is taken into consideration. However, this provision is not clear because it submits the issue to the law of the place where the marriage was concluded). In other countries such as Portugal, there is a conflict rule on marriage validity submitting the issue to the domestic law, although there might be an issue of public policy. In the case of same-sex marriages, it has been also suggested to change their categorization and apply the Matrimonial Property Regimes Regulation. See R. Espinosa Calabuig and P. Quinzá Redondo, Eufam II Report on the Spanish Exchange Seminar, 2019, in http://www2.ipr.uni-heidelberg.de/eufams/ 23 Ibidem. Some academics suggested to address the issue from the recognition perspective, but not resorting to the recognition and enforcement rules on the regulation, but from the marriage perspective (by request of a marriage certification). 24 Among others see, Magnus and Mankowski (eds) (n 10) 29; Cornelup (n 10) 201–04; Boele-Woelki and González Beilfuss (n 12) 29; Shúilleabráin (n 10) 114–16.

Matrimonial Matters  57

A.  Same-Sex Marriages Practitioners and academics have stressed the problems related to different kinds of divorces, such as that of same-sex couples.25 The absence of any reference to that was deliberated due to the different opinions in the Member States on the acceptance of this type of marriage.26 However, it would be wise to tackle this issue as there can be cases where this type of couple would not find a Member State’s jurisdiction to hear their judicial separation or divorce, and thus they would be discriminated against in relation to other couples.27 The Brussels IIter regulation does not introduce a similar rule to Article 13 of Rome III or to Article 9 of the Matrimonial Property Regimes Regulation in relation to marriages between persons of the same sex. This approach should have been reconsidered as a matter of consistency between international instruments. In the Impact Study, it is indicated that it is a very sensitive question, and it is better not to deal with it. Thus, the states that recognise this type of marriage can apply Brussels IIa Regulation, and those that do not recognise it are not obliged to apply it.28 A similar rule in the new Regulation would have helped to prevent any interpretive risk in favour of a possible recognition of marriages which, although valid in certain Member States, in many others are not.29 Additionally, it is striking that the forum necessitatis has not been incorporated. This rule could have been envisaged in cases where the competent courts are located in the EU, but whose laws do not provide for divorce or do not recognise the validity of the marriage in order to obtain a divorce decision. It would have been sufficient to require

25 According to the opinions set out in the Eufam’s Spanish Exchange Seminar celebrated in Valencia in October 2016. R Espinosa Calabuig and L Carballo Piñeiro, Report on Spanish Good Practices (EUFam’s Project, 2016) 4–5 at www.eufams.unimi.it/wp-content/uploads/2017/01/EUFAMS-Spanish-report-ongood-practices.pdf. 26 See broadly, S Alvarez González, ‘Matrimonio entre personas del mismo sexo para toda la UE?, A propósito de las conclusiones del Abogado General en el Asunto Coman’, La Ley Unión Europea, n 56, 2018. 27 Espinosa Calabuig and Carballo Piñeiro (25), 5. 28 See broadly, B Campuzano Díaz, ‘La Propuesta de reforma del Reglamento 2201/2003: ¿Se introducen mejoras en la regulación de la competencia judicial internacional?’ in M Guzmán Zapater and C Esplugues Mota (eds), Persona y familia en el nuevo modelo español de Derecho internacional privado (Valencia, Tirant lo Blanch, 2019) 91–102. 29 This would explain the ‘reassuring tone’ of Recital 26(2) of the Rome III Regulation, which states that ‘where this Regulation refers to the fact that the law of the participating Member State whose court is seised does not deem the marriage in question valid for the purposes of divorce proceedings, this should be interpreted to mean, inter alia, that such a marriage does not exist in the law of that Member State. In such a case, the court should not be obliged to pronounce a divorce or a legal separation by virtue of this Regulation’. See the critical analysis of Art 13 by P Orejudo Prieto De Los Mozos, ‘La nueva regulación de la ley aplicable a la separación judicial y al divorcio: aplicación del reglamento Roma III en España’ (2012) Diario La Ley nº 7913, 5–6. See also, M Guzmán Zapatero, ‘Divorcio, matrimonio y ciertas diferencias nacionales: a propósito de su tratamiento en el art. 13 del Reglamento Roma III’ in C Esplugues Mota and G Palao Moreno (eds), Nuevas fronteras del Derecho de la Unión europea. Liberamicorum José Luis Iglesias Buhigues (Valencia, Tirant lo Blanch, 2012) 52; R Espinosa Calabuig, ‘Elección de una ley por las partes al divorcio y separación judicial: la solución limitada del Reglamento Roma III’ in I Queirolo, I Benedetti and L Carpaneto (eds), Le nuove famiglie tra globalizzazione e identità statuali. Scritti di diritto privato europeo ed internazionale (Roma, Aracne, 2014) 213.

58  Rosario Espinosa Calabuig some link with the forum, for example the nationality of one of the spouses.30 It is worth recalling that, as regards the Rome III Regulation, especially Article 13, the Council of the EU issued a Declaration requesting a reform of Brussels IIa Regulation to include a forum necessitatis for cases in which the competent courts were in countries that do not recognise same-sex marriages.31 The European Parliament also joined this request in its legislative resolution of 15 December 2010, requesting that the reform be carried out urgently.32 It is interesting to highlight how practice is demonstrating that the courts of some Member State in which same-sex marriage is not recognised, as in the case of Italy,33 are recognising the registration of such marriages that have been celebrated in a state where they are recognised.34 For this they have argued to respect the status familiae and Article 12 of the ECHR.35 In this regard, it is important to take into consideration that on 14 December 2017, the ECtHR rendered a judgment36 considering that the lack of legal recognition of same-sex unions in Italy violated the rights of six couples married abroad. In particular, it was considered a violation of Article 8 (the right to respect for private and family life) of the ECHR.37 Regarding the recent Regulation BrusselsIIter, it was also proposed that the use of gender-neutral terminology (‘spouses’ instead of ‘husband or wife’) would have facilitated coverage of same-sex marriages.38 30 In these regards see, Orejudo Prieto De Los Mozos (n 28) 6; MC Baruffi, ‘Il regolamento sulla legge applicabile ai “divorzi europei”’ (2011) DUE 861; R Clerici, ‘Il ruolo dell’autonomia privata tra espansione e limiti di operatività nel regolamento (CE) N. 1259/2010 sulla legge applicabile al divorzio e alla separazione legale’ (2012) DCI 357. See also P Franzina, ‘The law applicable to divorce and legal separation under regulation (EU) No 1259/2010 of 20 December 2010’ (2011) 3 CDT 101–02, in favour of a broad notion of marriage in Rome III Regulation that could favour the inclusion of same-sex couples and, in general, any union with a formal and stable character created through a procedure regulated by law and susceptible to being dissolved according to that procedure. See also P Franzina, ‘Sul forum necessitatis nello spazio giudiziario europeo’ (2009) RDI 1121. 31 Council Document of 26 November 2010, 17046/10, JUSTCIV 214, JAI 100. In this vein, see also the European Parliament Resolution of 15 November 2010. 32 See Campuzano Díaz (n 27) 95–97. In this sense see Report on Spanish Good Practices (n 17). 33 Regarding this topic see the interesting debate maintained during the Italian Exchange Seminar celebrated in Verona in July 2016 reflected in MC Baruffi, C Fratea and C Peraro, Report on Italian Good Practices (EUFam’s Project, 2016) 4 at www.eufams.unimi.it/wp-content/uploads/2017/01/EUFams_Italian-ExchangeSeminar_Report_Italian_Good_practices_eng_final3.pdf. 34 See for details S Marinai, ‘Recognition in Italy of Same-Sex Marriages Celebrated Abroad: The Importance of a Bottom-up Approach’ (2016) 9 EJLS 10. 35 The judgment of the Italian Supreme Court of 31 January 2017 confirmed the decision of the Court of Appeal of Naples that had ordered the registration of a French marriage consisting of two women. On the other hand, the Italian Government introduced in the Private International Law Act of 31 May 1995 No 218, Art 32bis (and thanks to a legislative decree of action of the Italian Same-Sex Civil Partnership Act of 20 May 2016 No. 76), according to which ‘the civil union or other similar institution, constituted abroad between Italian citizens of the same sex habitually resident in Italy produces the effects of civil unions regulated by Italian law’. 36 Orlandi and Others v Italy, Application No 26431/12 (ECtHR, 14 December 2017). 37 The case concerned a complaint by six same-sex couples that they had been unable to have their marriages, which they had contracted abroad, registered or recognised in any form as a union in Italy. They alleged, among other things, discrimination on the grounds of their sexuality. The Court noted that states had wide discretion on the question of whether or not to allow or register same-sex marriages. However, it found that there had been a violation of the couples’ rights after they had married abroad because Italian law had not provided any legal protection or recognition for them before 2016, when legislation on same-sex civil unions had come into force. 38 See F Swennen, ‘Atypical Families in EU (Private International) Family Law’ in J Meeusen et al, International family law for the European Union (Antwerpen, Intersentia, 2007) 396.

Matrimonial Matters  59 Consequently the silence of the Brussels IIter related to some important points such as a rule comparable to Article 13 of the Rome III Regulation and a forum necessitatis for cases in which the competent authorities are in countries that do not allow same-sex marriages should have been reconsidered in the interests of consistency between all of the instruments.

B.  Registered Partnerships Brussels IIa Regulation also excludes registered partnerships, which would demonstrate the lack of sensitivity towards the current pluralism of family models.39 However, in some Member States, certain ‘de facto couples’ have the same legal effect as marriages. This could lead to the dissolution of these relationships with the equivalent effects of marriage, which would be regulated by Brussels IIa Regulation.40 Therefore, a more flexible view of ‘matrimonial matters’ would encompass registered couples and, in the same way, same-sex marriages, but a strict interpretation of Brussels IIa Regulation – as well as Brussels Iiter – only contemplates ‘classic’ marriage.41 It is assumed that the Regulation can only be applied to formalised relationships. But some Member States automatically confer rights and obligations on those who cohabit for a defined period. However, these regimes do not require any formal act of status acquisition and therefore there is no need for any formal act of dissolution. Brussels IIa Regulation is concerned with this formal process of dissolution which is absent in such de facto relationships.42

39 See B Ancel and H Muir-Watt, ‘La désunión européenne: le Règlement dit Bruxelles II’ (2001) RCDIP 403. 40 Shúilleabráin (n 10) 105. 41 H Gaudemet-Tallon, ‘Le Règlement nº 1347/2000 du conseil du 29 mai 2000: Compétence, reconnaissance et execution des decisions en matière matrimoniale et en mattière de responsabilité parentale des enfants communs’ (2001) JDI 381. 42 See Shúilleabráin (n 10) 105; Swennen (n 37) 413.

60

6 Parental Responsibility DILETTA DANIELI

I.  Introduction to the Relevant Legislation Parental responsibility matters are directly regulated by EU secondary legislation, in particular by the Brussels IIa Regulation.1 This Regulation provides for rules concerning jurisdiction, recognition, and enforcement of decisions, and cooperation between central authorities. Only the applicable law is not covered by the PIL scope of this legal instrument, and is therefore governed by international sources, where these are applicable, or by national laws on a residual basis.2 The Brussels IIa Regulation has applied since 1 March 2005 to all EU Member States, except Denmark. However, two significant developments need to be considered in this regard: on the one hand, the adoption of the new Brussels IIter Regulation on 25 June 2019;3 and on the other hand, the impact of the withdrawal of the UK from the EU.4 First, this chapter provides an overview of the material and personal scope of Brussels IIa Regulation concerning parental responsibility, followed by some preliminary issues regarding the use of this notion in other international instruments. Then, the matters included in and excluded from the scope of parental responsibility within the

1 With specific regard to the provisions on the scope of application concerning parental responsibility, see eg, W Pintens, ‘Article 1. Scope’ and ‘Article 2. Definitions’ in U Magnus and P Mankowski (eds), European Commentaries of Private International Law. Brussels IIbis Regulation (Cologne, Verlag Dr Otto Schmidt, 2017) 52–81, 81–88; MC Baruffi, ‘Articoli 1–2 Regolamento (CE) 27 novembre 2003, n. 2201/2003’ in A Zaccaria (dir), Commentario breve al diritto della famiglia, 3rd edn (Milano, Wolters Kluwer-CEDAM, 2016) 2541–49. 2 See MC Baruffi, ‘Applicable Law. The 1996 Hague Convention on the Protection of Children’ in ch 19 of this volume. 3 Brussels IIter Regulation will apply starting from 1 August 2022. In the literature, on the recast process of Brussels IIa Regulation: ‘The revision of the Brussels IIbis Regulation (special issue)’ (2015) NedIPR; MC Baruffi, ‘La riforma del regolamento Bruxelles II bis e la tutela dell’interesse superiore del minore’ in E Triggiani, F Cherubini, I Ingravallo, E Nalin and R. Virzo (eds), Dialoghi con Ugo Villani, 2 (Bari, Cacucci editore, 2017) 1087; C Honorati, ‘The Commission’s proposal for a recast of Brussels IIa Regulation’ (2017) IFLJ 97. 4 Most recently, the period from which the Treaties shall cease to apply to the UK according to Art 50(3) TEU was extended until 31 January 2020 by virtue of the European Council Decision (EU) 2019/1810 taken in agreement with the United Kingdom [2019] OJ L281I/1. Consequently, the withdrawal was expected to take place on the first day of the month following the ratification of the Withdrawal Agreement or on 1 February 2020, whichever was the earliest (last update: December 2019).

62  Diletta Danieli meaning of the Regulation are assessed in more detail, taking into account the relevant CJEU and national5 case law. To conclude, some remarks on the practical implications of a far-reaching understanding of the concept of parental responsibility within the EU legal system are proposed. Brussels IIa Regulation expressly defines its material scope of application in Article 1(1), specifying that it applies ‘in civil matters relating to (b) the attribution, exercise, delegation, restriction or termination of parental responsibility’. Paragraphs 2–3 of the same provision complement the notion by adding two lists of matters that are, respectively, included in and excluded from the broad wording of paragraph 1. Furthermore, Article 2 lays down a number of definitions of the recurring legal terms used in the Regulation. These definitions are relevant to determine parental responsibility rights for the purposes of their interpretation and application (in particular, paragraphs 7–10 of this Article). Another aspect that is worth considering on a preliminary basis regards the absence of personal prerequisites of application in the Brussels IIa regime,6 with the consequence that the EU instrument always supersedes national rules whenever an international element (even linked to a non-EU state) exists in the given case. This legislative solution differs significantly from other EU PIL instruments7 and contributes to a substantial extension of the factual situations potentially falling within the scope of application of EU rules. As to the territorial scope of the Brussels IIa Regulation, the CJEU has indeed specified that it does not make ‘reference to any limitation’8 in this regard. As far as parental responsibility matters are concerned, this ‘original hierarchy’9 between EU and national legal sources results from the residual ground of jurisdiction laid down in Article 14 of Brussels IIa Regulation. Article 14 allows the court of a Member State to refer to domestic laws, provided that there is no other court within the EU having jurisdiction pursuant to Articles 8–13.10 Notwithstanding this express provision, at times national courts have failed to preliminarily refer to Article 14 of the Regulation. Instead, national courts directly applied their domestic PIL statutes in some cases where the habitual residence of the child was located outside the EU.11 Before analysing the actual contents of parental responsibility matters governed by Brussels IIa Regulation, it should be pointed out that this concept has a widespread use 5 The national case law herein cited and commented on has been collected by the partners of the ‘EUFam’s’ project and filed in a public database available at: www.eufams.unimi.it/category/database. The alphanumeric code following each decision cited in the footnotes represents the uniform classification tool adopted in order to populate the database. 6 MC Baruffi, C Fratea and C Peraro, Report on Italian Good Practices (EUFam’s Project, 2016) ss 1, 3 at www. eufams.unimi.it/wp-content/uploads/2017/01/EUFams_Italian-Exchange-Seminar_Report_Italian_Good_ practices_eng_final3.pdf, for similar considerations made with particular regard to matrimonial matters. 7 For example, Regulation Ia, which in principle requires that the defendant is domiciled in a EU Member State in order to be applied. 8 Case C-393/18 PPU UD v XB [2018] ECLI:EU:C:2018:835 para 31. 9 É Pataut and E Gallant, ‘Article 14. Residual jurisdiction’ in Magnus and Mankowski, European Commentaries of Private International Law. Brussels IIbis Regulation (n 1) 162. See also I Viarengo and FC Villata (eds), First Assessment Report on the case-law collected by the Research Consortium (EUFam’s Project, 2016) ss 1, 17 at www.eufams.unimi.it/wp-content/uploads/2017/01/EUFAMS-First-Assessment-Report-of-the-collectedcase-law.pdf. 10 See Part IV of this volume (Jurisdiction). 11 For example, Cass, 28 May 2014 No 11915, ITT20140528, regarding a child who was habitually resident in Cuba.

Parental Responsibility  63 in various international instruments concerning the rights of children and their protection. Parental responsibility is generally preferred to the stricter notion of ‘parental authority’.12 The most comprehensive source in this regard is the 1996 Hague Convention on the Protection of Children.13 The EU Regulation parallels this Convention in many respects. Among them, there are the definition of parental responsibility provided for in Article 1(2) of the Convention, and the included and excluded matters listed in its Articles 3 and 4, respectively. A further example comes from the European Convention of 25 January 1996 on the Exercise of Children’s Rights established within the framework of the Council of Europe.14 The objective of this Convention is to set forth a number of procedural rights and facilitate their exercise in proceedings affecting children, especially those ‘involving the exercise of parental responsibilities’ (Article 1(3)). The use of the plural form is meant to particularly emphasise the scope of the notion as encompassing a wide set of powers, rights, and duties.15 Neither the international nor the European legal instruments actually define their contents, which are therefore left to the laws of the state where responsibility is under consideration.16 As regards Brussels IIa Regulation, an autonomous interpretation of parental rights and duties is required in order to ensure consistency with the harmonising purposes of EU law. Furthermore, the interpretative solutions should benefit from a mutual influence between the various regulatory frameworks existing in the field of child protection at both the international and regional levels (on the one hand, the United Nations and the HCCH, and on the other hand, the EU and the Council of Europe).17 This would indeed ensure that possible gaps in the respective bodies of legislation are filled in accordance with the unifying objectives of these legal instruments. 12 It is worth mentioning that the paradigm shift occurred at the international level between the term ‘parental responsibility’ instead of the more traditional ‘parental authority’ was also among the grounds underlying the recent Italian legislative reform on the regulation of filiation and parent-child relationships (Law No 219 of 10 December 2012 ‘Disposizioni in materia di riconoscimento dei figli naturali’; Legislative Decree No 154 of 28 December 2013 ‘Revisione delle disposizioni vigenti in materia di filiazione, a norma dell’articolo 2 della legge 10 dicembre 2012, n. 219’). 13 The full text of the Convention (both in English and French) and the regularly updated status table are available at www.hcch.net. See generally N Lowe and M Nicholls, The 1996 Hague Convention on the Protection of Children (Bristol, Jordan Publishing, 2012); M Gration, I Curry-Sumner, D Williams, H Setright and M Right, International Issues in Family Law: The 1996 Convention on the Protection of Children and Brussels IIa (Bristol, Jordan Publishing, 2015); MC Baruffi, ‘La Convenzione dell’Aja del 1996 sulla tutela dei minori nell’ordinamento italiano’ (2016) 52 RDIPP 977. 14 The full text of the Convention (both in English and French) and the regularly updated status table are available at rm.coe.int/168007cdaf. 15 See generally the work of the Commission on European Family Law (CEFL), which has led to the publication of the ‘Principles of European Family Law regarding Parental Responsibilities’ [2007] at ceflonline.net/ principles, with the aim of promoting a degree of harmonisation of family law throughout Europe. In the literature, eg K Boele-Woelki, ‘The CEFL Principles regarding Parental Responsibilities: Predominance of the Common Core’ in K Boele-Woelki and T Sverdrup (eds), European Challenges in Contemporary Family Law (Antwerp/Oxford/Portland, Intersentia, 2008) 63. 16 Explanatory Report on the Convention, drawn up on the basis of Article K.3 of the Treaty on European Union, on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters (approved by the Council on 28 May 1998), prepared by Dr Alegría Borrás (Borrás Report) [1998] OJ C221/27 para 24. 17 In this regard, see further H Baker and M Groff, ‘The impact of the Hague Conventions on European family law’ in JM Scherpe (ed), European Family Law. The Impact of Institutions and Organisations on European Family Law, I (Cheltenham, Edward Elgar Publishing, 2016) 148–50.

64  Diletta Danieli To conclude these introductory considerations, it must be specified that the Brussels IIa Regulation does not set a range of age of children to be covered by the scope of application of its rules on parental responsibility, as opposed to other international instruments such as the 1996 Hague Convention on the Protection of Children ­(children up to the age of 18) or the 1980 Hague Child Abduction Convention18 ­(children up to the age of 16). As a result, this aspect shall be defined by Member States’ legal systems.19 It should be noted, however, that the new Brussels IIter Regulation fills the legislative gap by inserting two specific rules in this regard. On the one hand, the new Recital 17 expressly provides for the application of said instrument ‘to all children up to the age of 18 years’, with the exception of the provisions on child abduction that ‘should continue to apply to children up to the age of 16 years’ in order to be consistent with the 1980 Hague Child Abduction Convention. On the other hand, a new definition (No 6) is introduced in Article 2 of the Regulation, pursuant to which the term ‘child’ shall mean ‘any person below the age of 18 years’. Moreover, Brussels IIa Regulation does not require any link with matrimonial proceedings for its application in parental responsibility matters, with the consequence that its scope covers all children, regardless of their biological origin (Recital 5 of the Regulation).20

II.  Contents of Parental Responsibility Rights under Brussels IIa Regulation As mentioned above, Article 1(1) of Brussels IIa Regulation sets forth the general provision concerning its scope in relation to parental responsibility, which includes civil matters covering any legal situation from the very existence of such right (‘attribution’), throughout its forms of exercise (‘exercise, delegation, restriction’), to its cessation (‘termination’). The actual extent of these legal situations, however, is specified by the applicable substantive law (either domestic or foreign law, as determined by the connecting factor laid down in the relevant legal instrument). The concept of parental responsibility is further clarified by the definition provided in Article 2 No 7 of the Regulation, which refers to ‘all rights and duties relating to the person or the property of a child [that] are given to a natural or legal person by judgment, by operation of law or by an agreement having legal effect’. It follows that under the EU legal framework, the holder of parental responsibility may either be a natural or a legal person

18 The full text of the Convention (both in English and French) and the regularly updated status table are available at www.hcch.net. 19 European Commission, ‘Practice Guide for the application of the Brussels IIa Regulation’ [2014] para 3.1.1.1. 20 This enlargement of the scope of Brussels IIa was indeed a significant departure from its predecessor, Brussels II Regulation, which applied only to children of both spouses in the context of matrimonial proceedings relating to divorce, legal separation or marriage annulment. On occasion, also national courts (less so recently) have underlined this legislative improvement when assessing petitions regarding parental responsibility independently from any connection to matrimonial issues: eg, AG Leverkusen, 10 August 2006, 33 F 222/05, DEF20060810.

Parental Responsibility  65 (Article 2 No 8), and the rights and duties conferred to the holder may derive from a judicial decision, a legislative provision, or a private agreement having legal effect. The scope of the Regulation resulting from the broad wording of these rules has been specified by the CJEU case law in various instances. The term ‘civil matters’, for example, is an autonomous concept of EU law that is common in other PIL instruments.21 In particular, measures that would pertain to the public law sphere according to Member States’ laws are nonetheless encompassed in the notion of civil matters for the purposes of Brussels IIa Regulation, provided that the object of the application requesting that measure falls within its material scope.22 In this regard, the CJEU has most recently held that the object of an action where the court is called upon to rule on the child’s need to obtain a passport and the parent’s right to apply for that passport without the agreement of the other parent is the ‘exercise of parental responsibility for that child’23 within the meaning of Article 1(1)(b) in conjunction with Article 2 No 7 of Brussels IIa. No relevance should be given to the fact that this court’s decision would subsequently be taken into account in the administrative procedure for issuing the child’s passport, which remains exclusively regulated by domestic law. Also, national case law appears to follow this autonomous interpretation properly. For instance, German courts apply the Regulation even in administrative proceedings involving the Jugendamt (youth welfare office).24 This general notion of parental responsibility is then complemented by the lists of included and excluded matters provided in paragraphs 2–3 of Article 1, respectively. Each of them is separately analysed in the following subparagraphs.

A.  Article 1(2) of the Brussels IIa Regulation: Included Matters The matters listed in this provision are merely illustrative, and thus do not cover all issues that could potentially fall within the material scope of the Brussels IIa Regulation. Point (a) first refers to ‘rights of custody and rights of access’, which are aspects typically related to the attribution and the exercise of parental responsibility. The former is specifically defined in Article 2 No 9 of the Regulation as ‘rights and duties relating to the care of the person of a child, and in particular the right to determine the child’s place of residence’. The latter is a less comprehensive right that allows its holder ‘to take a child to a place other than his or her habitual residence for a limited period of time’ pursuant to Article 2 No 10.25

21 Brussels Ia Regulation: in this regard eg, Case C-645/11 Land Berlin v Ellen Mirjam Sapir et al [2013] ECLI:EU:C:2013:228; Case C-49/12 The Commissioners for Her Majesty’s Revenue & Customs v Sunico ApS et al [2013] ECLI:EU:C:2013:545. 22 Case C-435/06 C [2007] ECR I-10169, ECLI:EU:C:2007:714; Case C-523/07 A [2009] ECR I-2805, ECLI:EU:C:2009:225. Both decisions are further analysed in section II.A of this chapter. 23 Case C-215/15 Vasilka Ivanova Gogova v Ilia Dimitrov Iliev [2015] ECLI:EU:C:2015:710 para 29. 24 OVG Lüneburg, 20 January 2016, 4 LB 14/13, DEA20160120. Against VG Augsburg, 13 April 2015, 3 E 15.251, DEA20150413, even though the ruling of this court does not seem convincing. See also First Assessment Report (n 9) ss 1, 17. 25 Both definitions are clearly inspired by those provided in the 1980 Hague Child Abduction Convention (Art 5).

66  Diletta Danieli In particular, the notion of rights of custody needs to be interpreted independently of any domestic legislation in order to be consistent with a uniform application of EU law,26 and is further relevant to determine whether a child’s relocation may amount to a ‘wrongful removal or retention’ within the meaning of Article 2 No 11.27 In this specific regard, account must be given to custody rights that were both (a) conferred under Member States’ laws applicable in each case, ie, those of the place of habitual residence of the child immediately before the removal or retention; and (b) effectively exercised by their holder (either jointly or alone). As established by the CJEU,28 it follows that the wrongful nature of the conduct depends on the actual place of a child’s habitual residence immediately before the relocation. The court of the place to which the child was removed or retained can order the return only if it is able to determine – on the basis of the factual circumstances of each case – whether the child’s habitual residence was located in the Member State of origin. It was precisely in the context of an alleged wrongful removal of three children by their parents that the CJEU has ruled on the inclusion within the material scope of Brussels IIa Regulation of ‘a decision making [those] children wards of court and directing that [they] be returned’, on the ground that such decision concerned rights of custody and/or guardianship.29 More specifically, the wardship jurisdiction exercised by the national court in the main proceedings at hand (resulting in the attribution of the rights of custody over the children to a public authority) was deemed to involve the exercise of rights related to the welfare and education of the children (Article 1(2)(a) of the Regulation) or aspects of guardianship and curatorship (Article 1(2)(b) thereof).30 As far as the interpretation of the concept of rights of access is concerned, a preliminary ruling of the CJEU regarding the range of persons exercising these rights should be mentioned.31 The question referred sought to establish whether such notion as referred to in Articles 1(2)(a) and 2 No 10 of Brussels IIa Regulation encompassed also the rights of access of persons other than parents, namely the grandparents in the case at issue. Following the guidance offered in the opinion of Advocate General Szpunar,32 the CJEU reasonably supported a positive answer, which was inferred from the textual analysis

26 Case C-400/10 PPU J McB v LE [2010] ECR I-8965, ECLI:EU:C:2010:582 para 41. 27 The Regulation’s provisions on child abduction (Arts 10–11) fall outside the scope of this chapter and are dealt with in Part IV of this volume (Jurisdiction). On the interpretation given by national courts to the notion of custody rights in the context of child abduction proceedings, see eg Najvyšší súd, 30 June 2009, 2 M Cdo 23/2008, SKT20090630; Najvyšší súd, 30 April 2013, 6 Cdo 1/2013, SKT20130430; Trib minorenni Catania, 1 July 2015, ITF20150701. 28 Case C-376/14 PPU C v M [2014] ECLI:EU:C:2014:2268 para 57. 29 Joined Cases C-325/18 PPU and C-375/18 PPU Hampshire County Council v CE and NE [2018] ECLI:EU:C:2018:739 paras 54–61. 30 ibid, para 58. 31 Case C-335/17 Neli Valcheva v Georgios Babanarakis [2018] ECLI:EU:C:2018:359. 32 Opinion of Advocate General Szpunar in Case C-335/17 Neli Valcheva v Georgios Babanarakis [2018] ECLI:EU:C:2018:242, arguing that ‘the textual, teleological, systematic and historical analysis’ of the provisions of the Regulation points to the extension of the meaning of rights of access as including the rights of access of grandparents to their grandchildren. The reasoning carried out in this opinion best illustrates the ‘cross-fertilisation’ between the international and EU legal instruments on child protection (see above, section I), as the Advocate General has interpreted the scope of application of the notion of rights of access under Brussels IIa Regulation in light of the 1996 Hague Convention on the Protection of Children, as well as the 2003 Convention on Contact concerning Children.

Parental Responsibility  67 of the provisions of the Regulation, as well as from its travaux préparatoires. In addition, the significant transformation of the society in the EU has resulted in a substantial change of the family life of citizens, and thus the diversification of family members who may be granted rights of access to children is a direct consequence of these changes. This transformation must also be properly recognised in the interpretation of the relevant provisions of Brussels IIa. Otherwise, should applications for rights of access by persons other than the parents be excluded from the scope of the Regulation, the jurisdiction to rule on those claims would be determined on the basis of non-harmonised PIL rules, with the ‘risk that conflicting or even irreconcilable decisions might be adopted’.33 Furthermore, the scope of application of rights of access includes the enforcement of a penalty payment imposed in order to ensure the effectiveness of such rights, in accordance with the CJEU ruling in Bohez.34 Indeed, it has been deemed as an ancillary measure that serves to protect a right falling within the scope of Brussels IIa Regulation, rather than that of Brussels I Regulation (and the current Brussels Ia) that generally applies to civil and commercial matters. The background of this holding is in wellestablished CJEU case law, which initially considered the inclusion of interim measures within the scope of the Brussels Convention in relation to the ‘nature of the rights which they serve to protect’.35 This holding was then more broadly applied to interpret the notion of civil and commercial matters under the Brussels I regime according to ‘factors characterising the nature of the legal relationships between the parties to the action or the subject-matter of the action’.36 The practical impact of the Bohez decision appears to have been overlooked in a case regarding compensation for damages sought for a breach of rights of access pursuant to Article 709ter(2) of the Italian Civil Procedural Code, where the national court did not carry out any specific assessment of the relevant PIL aspects.37 Most recently, however, the Italian Supreme Court has ruled precisely on the ancillary nature existing between claims concerning the exercise of parental responsibility over children habitually residing in London and a further action based on Article 709ter(2) of the Italian Civil Procedural Code, whose subject matter in this case was the alleged breach of maintenance obligations towards them and the consequent compensation for damages.38 In this regard, it held that the cause of action of the latter claim was inherently based in tort (ie, the breach of maintenance obligations), and thus was not ancillary to the action on parental responsibility. As a result, jurisdiction to rule on tort claims had to be established under Brussels I Regulation (applicable ratione temporis), and not Brussels IIa Regulation.39 33 Case C-335/17 Valcheva (n 31) para 35. 34 Case C-4/14 Christophe Bohez v Ingrid Wiertz [2015] ECLI:EU:C:2015:563. 35 Case 143/78 Jacques de Cavel v Louise de Cavel [1979] ECR 1055, ECLI:EU:C:1979:83 para 8. 36 Case C-406/09 Realchemie Nederland BV v Bayer CropScience AG [2011] ECR I-9773, ECLI: EU:C:2011:668 para 39. Previously, see Case C-420/07 Meletis Apostolides v David Charles Orams and Linda Elizabeth Orams [2009] ECR I-3571, ECLI:EU:C:2009:271 para 42. 37 Trib Benevento, 12 March 2015, ITF20150312. 38 Cass, 15 November 2017 No 27091, ITT20171115, commented by MC Baruffi, ‘Competenza della giurisdizione internazionale su misure di responsabilità genitoriale e obbligazioni alimentari’ Il Quotidiano giuridico 14 December 2017 at www.quotidianogiuridico.it. 39 Although falling outside the more limited purposes of this chapter, it should be nonetheless mentioned that the actual scope of application of the penalty measures envisaged in Art 709ter of the Italian Civil Procedural Code has been subject to much debate in both case law and literature. More precisely, the wording of the provision only refers to cases of breach of custody rights. However, courts do impose these measures also

68  Diletta Danieli Article 1(2) of Brussels IIa Regulation further provides that ‘guardianship, curatorship and similar institutions’ are among the matters covered by the notion of parental responsibility (Point (b)). Also, ‘the designation and functions of any person or body having charge of the child’s person or property, representing or assisting the child’ (Point (c)) and ‘the administration, conservation or disposal of the child’s property’ that qualify as measures of protection are similarly governed by the Regulation (Point (e)). The peculiar nature of these latter two cases is well underlined by Recital 9. This specifies that whenever the measures relating to the children’s property do not concern their protection (ie, do not involve disputes between the parents), they rather fall within the scope of application of Brussels I (currently Ia) Regulation.40 As an example following this purposive approach, it is worth mentioning an Italian case where the judge supervising guardianships (giudice tutelare) applied Brussels IIa Regulation to a joint application lodged by the parents on behalf of their children for the appointment of a special guardian authorised to represent them in the purchase of an immovable property (in particular, it held that such action fell within the scope of Article 1(2)(c)).41 Lastly, Article 1(2)(d) considers ‘the placement of the child in a foster family or in institutional care’. These particular situations could be inherently regulated by public law within Member States’ legal systems, but the CJEU has regarded them as measures affecting the rights of custody over a child, and thus as matters relating to parental responsibility under Brussels IIa Regulation.42 This holding is also consistent with the autonomous interpretation given to the term ‘civil matters’, which has been analysed above. Moreover, the Regulation’s material scope includes a judgment rendered by a court of a Member State that orders the placement of a child in an institutional care in another Member State even where such decision entails ‘a period of deprivation of liberty [of that child] for therapeutic and educational purposes’.43 This further aspect is in fact qualified as a measure for protection of the child, and not as a ‘punishment for the commission of a criminal offence’44 that would be excluded from the scope of the Regulation (Article 1(3)(g)).

B.  Article 1(3) of Brussels IIa Regulation: Excluded Matters As opposed to the matters addressed above, the list of those excluded from the material scope of the Brussels IIa Regulation is exhaustive. Generally speaking, the grounds underlying the choice of excluding a particular matter can be grouped into two categories: some of them are typically governed by national laws (and thus Member States enjoy a wide margin of discretion); others are regulated at the EU level, but in specific acts other than Brussels IIa Regulation. in cases of breach of obligations financial in nature, such as maintenance. Anyway, and notwithstanding their nature based in tort, it could be argued that they fall within the scope of the Brussels IIa Regulation, as being essentially aimed at protecting the best interests of the child. 40 See also Practice Guide for the application of the Brussels IIa Regulation (n 19) para 3.1.1.4. 41 Trib Padova, 14 September 2017, ITF20170914. 42 Case C-435/06 C (n 22) paras 32–53; C-523/07 A (n 22) paras 21–29. 43 Case C-92/12 Health Service Executive v SC and AC [2012] ECLI:EU:C:2012:255 para 63. 44 ibid, para 65.

Parental Responsibility  69 The former category comprises the matters listed in Points (a)–(d) and (g) of Article 1(3), which refer, respectively, to ‘the establishment or contesting of a parentchild relationship’, ‘decisions on adoption, measures preparatory to adoption, or the annulment or revocation of adoption’, ‘the name and forenames of the child’, ‘emancipation’45 and ‘measures taken as a result of criminal offences committed by children’. In addition, Recital 10 clarifies the reasons for excluding the establishment of parenthood and, more generally, questions relating to the status of a person, stressing that these aspects differ from the attribution of parental responsibility. Member States courts appear fairly attuned to the interpretation of these exclusions, and no issues have arisen in the case law. For instance, an Italian court has properly held that the assessment of the state of neglect of a child, being a preparatory measure in order to possibly declare his adoption, falls outside the scope of Brussels IIa Regulation pursuant to Article 1(3)(b).46 This holding also appears in line with a recent CJEU ruling, in which an injunction sought against a public body of a Member State in order to prevent that body from commencing or continuing in that Member State proceedings for the adoption of children who were residing there, was excluded from the scope of the Regulation for being a decision on adoption and the measures preparatory to it.47 As for the matters listed in Points (e) and (f) that are governed by different EU legal instruments (such as maintenance obligations and successions) the relevant instruments are the Maintenance Regulation48 and the Succession Regulation,49 respectively. Unlike Brussels IIa, both Regulations provide for rules covering all PIL aspects (jurisdiction, applicable law, and recognition and enforcement of decisions), thus offering complete legislation that should facilitate the courts’ ability to rule on these specific matters. Nonetheless, the fragmentation of proceedings between various regulatory regimes still poses occasional difficulties upon national courts,50 which sometimes fail to assess each claim according to the correct EU or international instrument that should be applied.51 Furthermore, with specific regard to the exclusion provided in Article 1(3)(f), the CJEU has recently established that Brussels IIa Regulation applies to an inheritance settlement agreement concluded between the surviving spouse and a guardian ad litem on behalf of minor children, even though the approval of the agreement has been requested in the context of succession proceedings.52 This view is again supported by the 45 In particular, given that emancipated children can exercise a number of rights before reaching the age of majority without the assistance of parents or guardians, the Regulation becomes inapplicable to them according to the age limit provided for in each national legal system (in Italy, for example, the possibility of emancipation is given at 16 years): see MC Baruffi, ‘Articoli 1–2’ (n 1) 2548. 46 Trib minorenni Roma, 25 January 2008, ITF20080125. 47 Joined cases C-325/18 PPU and C-375/18 PPU Hampshire County Council (n 29) paras 92–93. 48 See further in this Part for the scope of application of the Maintenance Regulation. 49 See further in this Part for the scope of application of the Succession Regulation. 50 This issue was also highlighted in another EUFam’s project deliverable, namely the MC Baruffi, C Fratea, D Danieli and C Peraro Report on the outcome of the online questionnaire (EUFam’s Project, 2017) especially ss 5, 55–56 at www.eufams.unimi.it/wp-content/uploads/2017/06/EUFAMS-Report-OutcomesOnline-Questionnaire.pdf. 51 For some examples regarding the interplay between Brussels IIa and Maintenance Regulations, see Županijski sud u Puli Gž-1532/14, 16 September 2014, CRS20140914; Trib Modena, 7 February 2017, ITF20170207. 52 Case C-404/14 Marie Matoušková [2015] ECLI:EU:C:2015:653. Also, this holding has its background in the ‘mutual influence’ between the various international child protection instruments (see above, s I): indeed,

70  Diletta Danieli purpose of protection of the children underlying such measures, which is required to account for their limited legal capacity and thus aimed at safeguarding their best interests. The provisions of the Succession Regulation also confirm this holding by expressly excluding the status and legal capacity of natural persons from its scope of application (Article 1(2)(a)–(b) thereof).

III.  Final Remarks It appears safe to conclude that the contents of parental responsibility under the Brussels IIa Regulation are indeed far-reaching, and it is also no coincidence that the CJEU has consistently supported a wide interpretation of the rules governing its scope of application (Article 1) and the related definitions (Article 2). More precisely, the key element that needs to be considered in order to establish whether a specific action or legal institution actually falls within the scope of the Regulation is the purposive nature, in the sense that it should ultimately aim at protecting the children and their interests. In accordance with the international legal framework, it follows that parental responsibility is a harmonised and child-centred notion also from an EU perspective.53 However, partially different considerations may be relevant with regard to the separate concepts of the holding and exercise of parental responsibility. As mentioned above, the actual contents of these rights continue to be governed by domestic laws of each Member State, under which also public authorities and parties other than the parents can play a significant role. As a result, the practical application of Brussels IIa Regulation may face occasional inconsistencies, which are counterbalanced by the unifying purpose of the EU-autonomous notion of parental responsibility. These points are also confirmed by the general trends emerging from the national case law that have been assessed. Indeed, Member States’ courts are well accustomed to applying the Regulation to all claims concerning attribution, exercise, and termination of parental responsibility over a child, in accordance with the broad definition provided in Article 1(1)(b) thereof. Albeit infrequently, there are still some difficulties in addressing the relevant PIL issues regarding claims that are ancillary to proceedings on parental responsibility rights (eg, measures of enforcement related to a breach of rights of access). At times, these aspects may not be assessed, or otherwise by referring to the wrong EU or international legal source. In these cases, the qualified guidance provided by the CJEU and the overarching principles of Brussels IIa Regulation (especially the best interests of the child) should always be borne in mind.

the Explanatory Report on the 1996 Hague Child Protection Convention by Paul Lagarde (Lagarde Report) [1998] was expressly recalled to support the interpretation given by the CJEU. 53 For a more comprehensive assessment, see J Ferrer-Riba, ‘Parental responsibility in a European perspective’ in JM Scherpe (ed), European Family Law. Family Law in a European Perspective, III (Cheltenham, Edward Elgar Publishing, 2016) 284.

7 Maintenance MIRELA ŽUPAN AND MARTINA DRVENTIĆ

I. Introduction Maintenance obligations within the European Union (EU) are governed by the Maintenance Regulation complemented by the 2007 Hague Child Support Convention, accompanied by the 2007 Hague Maintenance Protocol. Once the competent judicial or administrative authority receives a request for the international recovery of maintenance it should first address the issue of scope of each of those instruments. Assessment relates to the substantive, temporal, and geographical scope. It naturally relates also to the disconnection clauses, ie, the rules governing the relations among these instruments, and the relations to other legal instruments. Both the Maintenance Regulation and the 2007 Hague Child Support Convention have many similarities, but they are separate and autonomous legislative regimes. They will be applied separately to relevant cases according to the scope of their respective provisions.1 As a default, the Maintenance Regulation will apply to set jurisdiction in cross-border maintenance cases before Member States of the EU, as well as to recognition of judgments between EU Member States. As a default, the 2007 Hague Child Support Convention will apply to international cases involving a Member State of the EU and a state outside of the EU which is a Contracting State to the Convention. Outside of the EU, the 2007 Hague Child Support Convention will apply between Contracting States to the Convention. In the end, Hague Maintenance Protocol will prescribe choice-of-law rules applicable in the Member States obliged by it, regardless of whether the case relates to an EU or international maintenance obligation.2

1 P Lortie and M Groff, Practical Handbook for Competent Authorities: the 2007 Hague Child Support Convention, the 2007 Hague Protocol on Applicable Law (Maintenance) and the 2009 European Union Maintenance Regulation (Oneşti, Magic Print, 2013) para 146. 2 M Hellner, ‘Maintenance obligations’ in J Basedow et al (eds) Encyclopedia of Private International Law (Cheltenham, Edward Elgar Publishing, 2017) 1184–85.

72  Mirela Župan and Martina Drventić

II. Background The 2007 Hague Child Support Convention and Maintenance Regulation were negotiated simultaneously. They represent a significant shift from the international maintenance obligations regime that had been built for decades beforehand.3 The following conventions addressing the cross-border recovery of maintenance have previously been concluded at the international level: 1. the United Nations Convention on the Recovery Abroad of Maintenance, New York, 20 June 19564 (hereinafter: 1956 New York Maintenance Convention); 2. Convention of 24 October 1956 on the law applicable to maintenance obligations towards children5 (1956 Maintenance Convention); 3. 1958 Hague Maintenance Convention; 4. Convention of 2 October 1973 on the Law Applicable to Maintenance Obligation6 (1973 Applicable Law Convention); and 5. 1973 Hague Maintenance Convention. The reform of the existing law on international maintenance obligations began in May 2003 at the Hague Conference on Private International Law (HCCH). The work within the HCCH resulted in the new convention with a sophisticated system of administrative cooperation and with a simple and fast system of recognition and enforcement of maintenance decisions based on indirect grounds of jurisdiction.7 The Hague Maintenance Protocol was enacted on 23 November 2007, when it became clear that many Member States of the HCCH were not interested in harmonising the applicable law rules.8 At the regional European level, EU legislative activity in private international law was primarily focused on civil matters in general. However, such rules encompassed the maintenance obligation as well. The following instruments were applicable: 1. 2. 3. 4.

Brussels Convention; 1988 Lugano Convention; Brussels I Regulation; and 2007 Lugano Convention.9

During negotiations within the HCCH, the EU had commenced its own reform process. The Maintenance Regulation was finalised after the Hague negotiations had been concluded in November 2007. The Regulation was adopted in December 2008. The parallel negotiations on those two instruments resulted in harmony between the two instruments. Some of the provisions of the 2007 Hague Child Support Convention 3 A Fiorini, ‘The New Hague Maintenance Convention’ (2008) 57 ICLQ 985. 4 United Nations, Convention on the Recovery Abroad of Maintenance, New York, 20 June 1956. 5 Hague Convention of 24 October 1956 on the Law Applicable to Maintenance Obligations towards children (entered into force 1 January 1962). 6 Hague Convention of 2 October 1973 on the Law Applicable to Maintenance Obligation (entered into force 1 October 1977). 7 P Beaumont, ‘International Family Law in Europe – the Maintenance Project, the Hague Conference and the EC: A Triumph of Reverse Subsidiarity’ (2009) 73 RabelsZ 509, 513. 8 ibid 514. 9 For particular emphasis on Switzerland see JK Kostkiewicz and M Eichenberger, ‘International maintenance law in legal relations between Switzerland and the EU’ (2005) 20 CLR 13.

Maintenance  73 are being used in the Maintenance Regulation. The Regulation benefited significantly from the Hague negotiations in the following areas: the provision of free legal aid in all child support cases, extensive duties for the central authorities, and the adoption of a separate protocol on the applicable law.10 The wording of the Maintenance Regulation emphasises that the Community and its Member States have taken part in the HCCH negotiations which had led to the adoption of the 2007 Hague Child Support Convention and the Hague Maintenance Protocol, both of which should be taken into account in the application of the Regulation.11 The Hague Maintenance Protocol entered into force as part of EU law before it entered into force at the international level.12 The 2007 Hague Child Support Convention was ratified by the EU on 9 April 2014 and entered into force on 1 August 2014.13 At the present time, except in the EU, the 2007 Hague Child Support Convention is in force in Albania, Bosnia and Herzegovina, Brazil, Honduras, Kazakhstan, Montenegro, Norway, Turkey, Ukraine and the United States.14 The Hague Maintenance Protocol is applicable in Member States since 18 June 2011 (excluding Denmark and the United Kingdom).15 The extensive use of the EU’s external competences, however, has led to a complex legal milieu with several connected legal instruments whose coordination becomes essential to serve justice properly in crossborder maintenance obligation cases.16

III.  The Maintenance Concept Around the world, maintenance comes in many forms and it is hard to determine a clear concept.17 The concept of maintenance on the national level is strongly under the effect of the legal culture of origin, customs, and habits.18 Most commonly the function of maintenance is to provide the claimant with means of support, with whatever

10 L Walker, Maintenance and child support in private international law (Oxford, Hart Publishing, 2015) 2. 11 The Maintenance Regulation, Recital 8. See also: A Borràs, ‘The Necessary Flexibility in the Application of the New Instruments on Maintenance’ in K Boele-Woelki, T Einhorn, D Girsberger and S Symeonides (eds), Convergence and Divergence in Private International Law. Liber Amicorum Kurt Siehr (The Hague/Zürich, Eleven International Publishing/Schulthess, 2010). 12 The EU declared that it will apply the rules of the Hague Maintenance Protocol provisionally from 18 June 2011, the date of application of the Maintenance Regulation, as the Protocol has not entered into force on that date in accordance with Art 25(1) thereof. See EU declaration/reservation/notification: www.hcch.net/ en/instruments/conventions/status-table/notifications/?csid=1065&disp=resdn. The Protocol entered into force at the international level on 1 August 2013. See status table: www.hcch.net/en/instruments/conventions/ status-table/?cid=133. See generally M Župan, ‘Innovations of the 2007 Hague Maintenance Protocol’ in P Beaumont et al (eds) The Recovery of Maintenance in the EU and Worldwide (Oxford, Hart Publishing, 2014) 311–32. 13 Council Decision of 9 June 2011 on the approval, on behalf of the European Union, of the Hague Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance [2011] OJ L 192/39. 14 Status table, www.hcch.net/en/instruments/conventions/status-table/?cid=131. 15 The Maintenance Regulation, Recital 20 and Art 76. 16 E Pataut, ‘The external dimension of Private International Family Law’ in M Cremona and H-W Micklitz (eds) Private Law in the External Relations of the EU (Oxford, Oxford University Press, 2016). 17 Walker (n 10) 8. 18 E Jayme, ‘Cultural Dimensions of Maintenance Law from a Private International Law Perspective’ in Beaumont et al (n 12) 3.

74  Mirela Župan and Martina Drventić is necessary to sustain life. Support in kind is generally not covered by international maintenance obligation proceedings, which mostly concern only financial support.19 The comparative law context reveals definitions that vary to a certain extent within different jurisdictions.20 The peculiarities of several legal systems have been confronted with the application of the Maintenance Regulation and the 2007 Hague Maintenance Protocol. For example, in the Italian legal system there are several forms of maintenance, with different names, conditions, and amounts, depending on the relationship between the parties.21 Italian law distinguishes between obbligazione alimentare and assegno di mantenimento. Obbligazione alimentare is the provision of material assistance to a person who is unable to support himself or herself. It is payable by certain persons identified by law, as part of their duty of family solidarity.22 Assegno di mantenimento is the provision of financial assistance by one spouse to another in the event of separation or divorce, and it is designed to ensure that whoever receives it is able to maintain the living standard enjoyed during the marriage. Assegno di mantenimento is not conditional upon the beneficiary being in need and it may be claimed even if the beneficiary is working. It may be waived, and it may be replaced by a single payment.23 The collected case law showed that in the Italian case law there are difficulties in relation to the delineation of the material scope of application of the Maintenance Regulation and the material scope of application of the 2007 Hague Maintenance Protocol, due to the existence of both forms of maintenance in the national practice. Still, most Italian courts have understood the necessity of refraining from referring to national concepts.24

A.  Child Maintenance Traditionally, the maintenance obligation arises as a moral obligation for parents to support their biological children.25 It has been transformed into a legal principle by Article 27(4) of the United Nations Convention on the Right of the Child26 urging States Parties to take all appropriate measures to secure the recovery of maintenance for the child from the parents or other persons having financial responsibility for the child, both within the State Party and from abroad.

19 D Martiny, ‘Maintenance obligations in the conflict of laws’ (1994) 247 Recueil des Cours de l’Académie de Droit International 142, 144. 20 See National Reports in J Basedow et al (eds), Encyclopedia of Private International Law (Cheltenham, Edward Elgar Publishing, 2017) 1855–2667. 21 S Bariatti, I Viarengo, F C Villata, S Bernasconi and F Marchetti, ‘Italy’ in P Beaumont et al (eds), Cross-Border Litigation in Europe (Oxford, Hart Publishing, 2017) 191. 22 ss 433 ff of the Codice civile (approved by Royal Decree No 262 of 16 March 1942 and amended up to Decree No 291 of 7 December 2016). 23 See European E-justice Portal, Maintenance Claims – Italy, e-justice.europa.eu/content_maintenance_ claims-47-it-en.do?init=true&member=1. 24 I Viarengo and FC Villata (eds), First Assessment Report on the case-law collected by the Research Consortium (EUFam’s Project, 2016), www.eufams.unimi.it/wp-content/uploads/2017/01/EUFAMS-FirstAssessment-Report-of-the-collected-case-law.pdf. 25 Walker (n 10) 9. 26 UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, Vol 1577.

Maintenance  75 Parents should also support adopted children, and in some cases, parents will also be obliged to support their stepchildren. Comparative family law distinguishes various modalities and indicates severe differences throughout the EU.27 In more recent times, new questions relating to maintenance duty appear with the variety of medical methods of conceiving children. One of the open issues relates to maintenance of a child conceived with assisted reproductive technology and surrogacy.28 Domestic legal solutions to surrogacy matters differ widely among jurisdictions.29 The question of to whom the parent is obliged to pay the maintenance for the child therefore gets more complicated. No reference to these issues can be tracked either with the preparatory or final acts in relation to the 2007 Hague Child Support Convention or the Maintenance Regulation. However, three theoretical situations which can result in a claim for maintenance involving surrogacy may be identified. First, the situation where the surrogate mother decides to keep the child and seeks child maintenance from the intended father and/or intended mother; second, the situation where the intended father and/or the intended mother make a claim for child maintenance against the surrogate mother; and third, the situation where, following the breakdown of the relationship of the intended parents, one of the intended parents seeks child maintenance from the other intended parent or from the surrogate mother.30

B.  Spousal Maintenance Unlike child maintenance, there is no international treaty obligation for adults to support or maintain each other through spousal maintenance. Such an obligation is thus shaped by the national policy and standards that have created diverging legal solutions. A variety of different forms of (spousal) maintenance has direct consequences in cross-border disputes as well. This has arisen with the early Brussels case law dating to the 1980s. In case 120/79 De Cavel II,31 the reference to the CJEU was made by the German court. It asked whether the Brussels Convention is applicable to the payments of interim compensation (prestation compensatoire), granted to one of the parties in a French judgment dissolving a marriage pursuant to Article 270 of the French Civil Code. In terms of Article 270, the payment in question is intended to compensate, as far as possible, for the disparity which the breakdown of the marriage creates in the parties’ respective living standards.32 It represents any financial obligation between former

27 See National Monographs in R Blanoain and M Colucci, International Encyclopaedia of Laws: Family and Succession Law (Alphen aan den Rijn, Kluwer Law International, 2007). 28 See K Trimmings and P Beaumont, ‘General Report on Surrogacy’ in K Trimmings and P Beaumont (eds) International Surrogacy Arrangements: Legal Regulation at the International Level (Oxford, Hart Publishing, 2013) 439–549. 29 See M Župan, V Puljko, M Sukačić, ‘Međunarodni ugovori o zamjenskom majčinstvu – nestaje li paradigma mater semper certa est?’ (2013) 29 Pravni vjesnik: časopis za pravne i društvene znanosti Pravnog fakulteta Sveučilišta J.J. Strossmayera u Osijeku 7. 30 See K Trimmings, ‘The Interface between Maintenance and Cross-Border Surrogacy’ in Beaumont et al (n 12) 266. 31 Case 120/79 Louise de Cavel v Jacques de Cavel [1980] ECR 00731, ECLI:EU:C:1980:70. 32 French law distinguished between pension alimentaire and prestation compensatoire.

76  Mirela Župan and Martina Drventić spouses after divorce which are fixed on the basis of their respective needs and resources and are equally in the nature of maintenance. The court decided that it represents a civil matter within the meaning of the first paragraph of Article 1 of the Brussels Convention and accordingly comes within the scope of the Convention.33 Post-marital maintenance is unknown or only ordered for a brief period in certain jurisdictions and the objectives are to improve the economic situation of the divorced spouse. An example of such a legal arrangement can be found in the Czech national law. According to the Czech Civil Code, the spouse who has not caused the breakdown of the marriage or who disagreed with the divorce, and who incurred serious harm as a result of the divorce, may apply to a court to determine that the former spouse has a duty to maintain and support him/her. The right of a divorced spouse to maintenance and support may in this case be considered justified only for a period appropriate to the circumstances, but not longer than three years after the divorce.34 Opposing principles can be found in German policy. German law used to recognise a guarantee of standard of living. This was replaced in 2008 with the compensation for disadvantages resulting from the marriage.35 The German Civil Code distinguished between maintenance obligation of spouses living apart and maintenance of the divorced spouse. The latter is based on the principle of personal responsibility: if one of the spouses is not in a position to provide for their own maintenance, he/she has the possibility to submit the claim for maintenance against the other spouse.36 This right can be based on some of the provisions governing the wide spectrum of maintenance forms such as maintenance to care for a child, maintenance by reason of old age, maintenance for illness or infirmity, maintenance for unemployment and topping-up maintenance, maintenance for reasons of equity, etc.

C.  Maintenance Arising from Same-Sex Marriages or Partnerships The Regulation and Convention remain silent on the question of whether maintenance obligations deriving from same-sex relationships fall within its scope. The approach to this issue depends on the national policy of each Member State. In states which introduced same-sex marriage, the prevailing solution is to apply mutatis mutandis the rules drafted for the opposite-sex marriage on the same-sex marriage, as they find no reason not to apply the conflict of law rules to such a marriage.37 Recently, the registered partnership emerges as the only form of registered union for the same-sex person.

33 Case 120/79 De Cavel II (n 31) para 5. 34 Act 89/2012 Coll. of 3 February 2012, on Civil Code (Zákon občanský zákoník) as amended, Official Gazette 22 March 2012 No 33, Art 762, obcanskyzakonik.justice.cz/images/pdf/Civil-Code.pdf. 35 Jayme (n 18) 11. 36 Civil Code in the version promulgated on 2 January 2002 (Federal Law Gazette [Bundesgesetzblatt] I page 42, 2909; 2003 I page 738), last amended by Art 4(5) of the Act of 1 October 2013 (Federal Law Gazette I p 3719), s 1569. 37 See P Wautelet, ‘Cross-Border Same Sex Relationships – Private International Law Aspects’ in A Fuchs and K Boel-Woelki (eds), Legal Recognition of Same-Sex Relationships in Europe (Intersentia, 2012) 144, 146.

Maintenance  77 This civil union occurs as one step on the way to equalisation with the marital union.38 The question raised is whether the partnership can use the conflict-of-law rules adopted for marriage. There is no uniform answer applicable to all jurisdictions. The practice is different throughout the EU. Denmark took the stand that existing international instruments should not be applicable to registered same-sex partnerships unless all Contracting States agreed. In opposition to this, the Netherlands took the stance that the selected international instruments, such as the Hague 2007 Maintenance Convention, which applies to maintenance obligations ‘arising from a family relationship, parentage, marriage or affinity’, can be applied to same-sex partnerships.39 Nevertheless, the attitude of the Member States’ national courts towards the nonapplication of the Maintenance Regulation and the 2007 Hague Maintenance Protocol to maintenance obligations having as its legal basis same-sex marriage should be directed by the CJEU and the ECHR case law on equal treatment of homosexuals. The landmark decision of the CJEU in Case C-267/06 Maruko40 stands as a confirmation of vertical interpretation of prohibition of discrimination at any other legal matter. The plaintiff, Mr Tadao Maruko, a homosexual who entered into a registered partnership with another man, had contributed to the compulsory pension scheme of the Versorgungsanstalt der deutschen Bühnen (VddB) for more than 40 years. When his life partner died in 2005, Mr Maruko demanded the payment of a widower’s pension as part of the survivor’s benefits. The VddB scheme provided for the grant of a widower’s pension only in the case of married couples, not in the case of a registered partnership between persons of the same sex. According to Mr Maruko, the VddB’s refusal to grant him survivor’s benefits on the same conditions as a surviving spouse was discrimination on grounds of his sexual orientation. He filed an action with the Bavarian Administrative Court, Munich, which referred the case to the CJEU for a preliminary ruling, asking whether Directive 2000/78/EC41 obliges Member States to ensure that in cases such as the one at hand the surviving same-sex partner receives a survivor’s benefit equivalent to that granted to a surviving spouse. The CJEU ruled in Mr Maruko’s favour, stating that the payment of a widower’s pension under an occupational pension scheme was to be considered a part of the employed person’s salary, and hence fell within the scope of the Directive 2000/78/EC which forbids discrimination on grounds of sexual orientation with regard to employment and employment-related benefits. In Pajić v Croatia42 the ECHR ruled on the recognition of a homosexual couple in an immigration context. The applicant, a national of Bosnia and Herzegovina, was in a stable same-sex relationship with a woman living in Croatia. After two years she lodged a request before the Croatian authorities for a residence permit with a view to family reunification. She submitted proof of her Croatian education and 17-year longterm residence in Zagreb. She also explained her intention to establish a household 38 M Župan, ‘Registered Partnership in Cross-border Situations’ in N Bodiroga-Vukobrat et al (eds), Invisible Minorities (Hamburg, Verlag Dr Kovač, 2013) 98. 39 Wautelet (n 37) 156. 40 Case C-267/06 Tadao Maruko v Versorgungsanstalt der deutschen Bühnen [2008] ECR I-01757, ECLI:EU:C:2008:179. 41 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L 303. 42 Pajić v Croatia App no 68453/13 (ECtHR, 23 February 2016).

78  Mirela Župan and Martina Drventić and start a business with her partner. The immigration authorities refused her request on the ground that the Aliens Act43 expressly restricted the right to a temporary residence permit to heterosexual couples and made no mention of same-sex couples. The ECHR noted that the Croatian legal system recognised both extramarital relationships of different-sex couples and same-sex couples. The ECHR considered that a partner in a same-sex relationship, such as Ms Pajić, who applied for a residence permit for family reunification so she could pursue family life in Croatia, was in a comparable situation to a partner in a different-sex extramarital relationship as regards the intended manner of making his or her family life possible. The Croatian Aliens Act reserved the possibility of applying for a residence permit for family reunification to different-sex couples, married or living in an extramarital relationship. By tacitly excluding same-sex couples from its scope, the Aliens Act introduced a difference in treatment based on the sexual orientation of the persons concerned. The ECHR found a violation of Article 14 read in conjunction with Article 8 of the European Convention of Human Rights.44 More recently, in December of 2017, the ECHR ruled on the matter exclusively in the context of Italian law refusing recognition or registration of the same sex marriage that the six applicant couples entered into abroad. Ruling in Orlandi and Others v Italy45 confirms that such a national attitude amounts to a violation of the right to respect for private and family life. Prohibition of discrimination in the context of maintenance obligations requires further elaboration, having in mind distinction between two different situations. The first possible scenario would relate to exercising jurisdiction while the other one would relate to the choice of law process: determination and application of respective substantive law. The above-mentioned landmark Luxembourg and Strasbourg courts case law should by analogy be applied to cross-border maintenance obligations as well. Autonomous interpretation of the Maintenance Regulation requires that qualification is broad, as confirmed also by the CJEU in its recent Coman and Others ruling.46 Adjudication should take into account basic legal principles which create part of EU primary law, as well as human rights obligations which are an integral part of the Lisbon Treaty on the Functioning of the European Union47 and accompanied Charter of Fundamental Rights.48 These aspects applied simultaneously may lead to a conclusion that instantly rejecting jurisdiction over a maintenance claim because it derives out of a same-sex marriage, would amount to discrimination. The court of each Member State would have to accept adjudicating over that matter, naturally, if its jurisdiction is founded on the Maintenance Regulation. This conclusion applies even in the case where according to national law such an obligation does not exist in relation to a particular maintenance creditor or debtor. The court would have to find the applicable law to discover if such an obligation pursuant to the applicable legal regime exists. If it exists in relation to 43 Aliens Act (Zakon o strancima), Official Gazette, No 130/11, 74/13, 69/17. 44 European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ETS 5. 45 Orlandi and Others v Italy App no 26431/12 (ECtHR, 14 December 2017). 46 Case C-673/16 Relu Adrian Coman and Others v Inspectoratul General pentru Imigrări and Ministerul Afacerilor Interne [2018] ECLI:EU:C:2018:385. 47 Art 6(2) of the Consolidated Version of the Treaty on the Functioning of the European Union. 48 Charter of Fundamental Rights of the European Union [2010] OJ C 83/02.

Maintenance  79 registered partners of the same sex, and spouses of the opposite sex, rejecting such maintenance by invoking public policy would amount to discrimination. If pursuant to applicable law such an obligation exists only in relation to spouses, but not in relation to registered partners, let alone same-sex in any variant, the obligation to same-sex spousal maintenance would not exist. If in a third scenario the applicable law would not have any rules on registered partnership of same-sex couples, and marriage is through a constitutional provision considered to be a legal relation solely reserved for opposite sexes, the maintenance obligation claim of a same-sex spouse may be rejected by invoking a public policy excuse.

IV.  Substantive Scope The Maintenance Regulation applies to all maintenance obligations arising from a family relationship, parentage, marriage, and affinity.49 This provision appears to be very broad at first, but the full range of its scope may not be applicable in all cases. Definition of the term ‘maintenance’ is not included in the Regulation. Recital 11 reminds it should be interpreted autonomously. The relevant applicable law will be used to determine whether a maintenance obligation exists under the Regulation.50 According to the Maintenance Regulation, the rules on the conflict of laws determine only the law applicable to maintenance obligations and do not determine the law applicable to the establishment of family relationships which forms a legal basis of the maintenance obligation.51 The existence and nature of the relationship which may give rise to the maintenance obligation is covered by the national law of the Member States. The application of the Regulation is confined only to maintenance matters. Vice versa, the application of the Regulation does not entail any legal effect on the underlying family relation. To put additional emphasis on this concept, Article 22 confirms that the recognition and enforcement of a decision on maintenance shall not in any way imply the recognition of the family relationship, parentage, marriage, or affinity underlying the maintenance obligation which gave rise to the decision.52 The stance of the 2007 Hague Maintenance Protocol is similar. The Protocol shall determine the law applicable to maintenance obligations arising from a family relationship, parentage, marriage, or affinity, including a maintenance obligation in respect of a child regardless of the marital status of the parents.53 Regarding the question of existence of such a relationship, the decisions rendered in application of this Protocol shall be without prejudice to the existence of any of the relationships referred to in the first paragraph.54 The Explanatory Report clarifies that the autonomous connection of the maintenance obligation implies that the law applicable to the family relationships to



49 Maintenance

Regulation, Art 1. (n 10) 37. 51 Maintenance Regulation, Recital 21. 52 ibid, Art 22. 53 2007 Hague Maintenance Protocol, Art 1(1). 54 ibid, Art 1(2). 50 Walker

80  Mirela Župan and Martina Drventić which Article 1(1) refers needs to be determined, in each Contracting State, on the basis of the rules of conflicts of laws in force and generally applicable in that state.55 This raises no difficulty when the existence or non-existence of the family relationship is the principal issue of the proceedings concerned (eg, when the claim relates to the proof of parentage). The problem arises when the issue of existence of the family relationship arises on a preliminary basis in the course of proceedings with the maintenance as the principal claim (eg, if the debtor disputes the existence of the parentage). The Explanatory Report on the 2007 Hague Maintenance Protocol advocates employment of the dependency method with such preliminary issues. It leans on the attitude embraced by its 1956 and 1973 predecessors. Consequently, the law designated to govern the maintenance obligation should also apply to the preliminary issue of the existence of a family relationship within the meaning of Article 1(1).56 This solution was embraced by the German appeal court in Frankfurt am Main.57 The German applicant lived with his mother in Germany. He claimed maintenance from the defendant with residence in Germany. The mother was originally married in Belarus, but at the same time she had lived together with the defendant in Germany. In 2006, it was discovered that the applicant was not the child of the mother’s husband. The defendant had recognised paternity. The court of first instance therefore granted maintenance to the applicant. In the meantime, the applicant moved with his mother to Belarus. The defendant appealed the first instance decision, arguing that under Belarusian law the child was considered to be the child of the mother’s present husband and that the applicant was entitled to maintenance from the mother’s husband. The German court applied the German law to the maintenance claim pursuant to Article 3(1) and Article 4(3) of the Maintenance Protocol. The preliminary issue of paternity was resolved by reference to the same law that governs the maintenance, so the court found German law to be applicable. The defendant’s objection referring to the Belarus law was therefore dismissed. Although the solution offered in the Explanatory Report is not binding on the Contracting States,58 it is considered to be a preferable theoretical approach to preliminary questions in international conventions in general. While it offers space for controversies, it also contributes to the procedural efficiency and consistency of decision-making under the Protocol.

V.  Geographical Scope The Maintenance Regulation is directly applicable in all Member States of the European Union. Exceptionally, Denmark is participating in the Maintenance Regulation only as far as its provisions amend the Brussels I Regulation. Pursuant to an Agreement,

55 A Bonomi, Explanatory Report on the Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations (The Hague, HCCH Publications, 2013) para 24. 56 ibid, para 24. 57 OLG Frankfurt a. M, 12 April 2012, 5 UF 66/11, DES20120412. 58 Bonomi (n 55) para 24.

Maintenance  81 provisions of the Maintenance Regulation are applied to relations between other Member States and Denmark with the exception of the provisions in Chapters III (Applicable Law) and VII (Cooperation between Central Authorities).59 However, the Polish court misinterpreted this provision of the Agreement. It exempts Denmark from the applicable law regime of the Hague Maintenance Protocol. The other Member States are obliged to apply the Protocol erga omnes, hence it should have been applied to this case as well. The first instance court in Poland dealt with the application for the increase of the amount of the maintenance obligation. The court stated that at the time the court was seised, the defendant had his habitual residence in Denmark. The court was obliged to define which court should have jurisdiction and which law should be applicable. Jurisdiction was established under Article 3 of the Maintenance Regulation. The court emphasised that Denmark is not bound by the provisions concerning the determination of the applicable law. Considering this, the court found that the applicable law should be established according to the 1973 Applicable Law Convention. Article 4 of this Convention determines that the internal law of the habitual residence of the maintenance creditor shall govern the maintenance obligations referred. Consequently, the Polish law was applied in the case.60 With respect to the applicable law regime under the Maintenance Regulation, the United Kingdom, alongside Denmark, is not bound by the Hague Maintenance Protocol.61 As a consequence, decisions given in these two countries would be treated differently for the purposes of recognition and enforcement.62 The rules on jurisdiction, contained in Chapter II of the Maintenance Regulation and the applicable law rules of the Hague Maintenance Protocol in Chapter III have an erga omnes character. Hence, the application is not confined to cases connected to or from other Member States of the European Union. The competent authorities should apply these rules universally to all international cases which fall within the scope of the Maintenance Regulation.63 A symptomatic example of national practice may be found in a court case file in Milan.64 The applicant (wife) filed the request for divorce, parental responsibility, child maintenance, and spousal maintenance before the Italian court. The defendant was an Italian-Moroccan national. The whole family had habitual residence in Switzerland. The court decided to take jurisdiction over divorce under Article 3(1)(b) of the Brussels IIa Regulation. The court disclaimed jurisdiction over the claim on parental responsibility pursuant Article 8 of the same Regulation. The court accepted its jurisdiction over the maintenance action filed by the wife, as such a claim is ancillary to the action concerning status pursuant to Article 3(c) of the Maintenance Regulation. Also, the court disclaimed its jurisdiction over the claim for child maintenance explaining that the claim was inherently connected to the one on parental responsibility and 59 Agreement between the European Community and the Kingdom of Denmark on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2013] OJ L 251/1. 60 III RC 589/12 (SR dla Wrocławia Śródmieścia we Wrocławiu). 61 Protocol (no 21) on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice [2013] OJ C 202/295. 62 Ch IV, s 2 of the Maintenance Regulation will be applicable. See: L Walker, ‘New (and Old) Problems for Maintenance Creditors under the EU Maintenance Regulation’ in Beaumont et al (n 12) 783. 63 Lortie (n 1) para 505. 64 Trib Milano, 16 April 2014, ITF20140416.

82  Mirela Župan and Martina Drventić thus should be decided together. Under Article 3 of the Hague Maintenance Protocol the Italian court applied the Swiss law as the law of the state of the creditor’s habitual residence on the spousal maintenance claim.

VI.  Temporal Scope The Maintenance Regulation is applicable in 27 Member States from 18 June 2011,65 whereas in relation to Croatia the Regulation has been in force since 1 July 2013.66 The Maintenance Regulation specifies that it will apply only to proceedings instituted, to court settlements approved or concluded, and to authentic instruments established after the date of application of the Regulation.67 An interesting example of the temporal scope of application may be found with the second instance court of the Czech Republic. The child, a Czech citizen with habitual residence in Germany, claimed maintenance against his father on 21 September 2012. The defendant was a Czech citizen with habitual residence in the Czech Republic. The first instance court in the Czech Republic declared the lack of jurisdiction in accordance with Article 5(2) of the Brussels I Regulation. The applicant appealed against this decision. The court of appeal annulled the decision of the first instance court and remitted the case back for further consideration to the first instance court. The court of appeal decided that the first instance court must apply the Maintenance Regulation instead of the Brussels I Regulation. Moreover, the Czech court has jurisdiction on the basis of Article 3(1)(a) due to the fact that the father was habitually resident in the Czech Republic.68 A thorough consideration of the term ‘maintenance proceeding instituted’ can be found in the first instance judgment of the Belgian court. The divorce proceedings were brought before the Bruges Court of First Instance by the applicant on 29 April 2011. The defendant lodged a counterclaim for maintenance after divorce on 21 March 2012. The court needed to examine when the proceedings were ‘instituted’ within the meaning of Article 75(1) of the Maintenance Regulation. The court considered that the concept of ‘instituted’ should have an autonomous interpretation. The Court compared Article 75(1) of the Maintenance Regulation and Article 18 of the Rome III Regulation and deduced that the meaning of both terms cannot be the same. It concluded that the wording of the Maintenance Regulation refers to the moment when the maintenance claim was put before the court. In this case this was at the time the defendant submitted the written conclusions, on 21 March 2012. Therefore, the Maintenance Regulation was applicable.69 65 Maintenance Regulation, Art 76(2). 66 Council Regulation (EU) No 517/2013 of 13 May 2013 adapting certain regulations and decisions in the fields of free movement of goods, freedom of movement for persons, company law, competition policy, agriculture, food safety, veterinary and phyto-sanitary policy, transport policy, energy, taxation, statistics, trans-European networks, judiciary and fundamental rights, justice, freedom and security, environment, customs union, external relations, foreign, security and defence policy and institutions, by reason of the accession of the Republic of Croatia [2013] OJ L 158/1. 67 Maintenance Regulation, Art 75(1). 68 KS v Brně, 3 September 2014, 21 Co 327/2014, CZS20140903. 69 HL v NB – Rb Brugge, 11 July 2012.

Maintenance  83 The Maintenance Regulation foresees an exception from the above-mentioned default rule on its temporal application. Section 2 and 3 of Chapter IV – rules on recognition, enforceability, and enforcement of decisions given in a Member State not bound by the Hague Maintenance Protocol, will apply to: (i) decisions given in the Member States before the date of application of the Regulation where recognition and declaration of enforceability are requested as from the date of application of the Regulation; and (ii) decisions given as from the date of application of the Regulation following proceedings begun before that date. Still, such decisions must fall with the scope of the Brussels I Regulation for the purposes of recognition and enforcement.70 The provision was well applied by the Greek court in the case where the applicant, acting on behalf of her two children, petitioned the court in Rhodes to declare a maintenance judgment enforceable in Greece. The judgment was issued by the Court of Amsterdam in 2005. The debtor resides in Rhodes. The court accepted the application and declared the Dutch judgment as enforceable in Greece. The court noted that the Maintenance Regulation was applicable from 18 June 2011, and pointed out that the provisions regarding the enforcement of judgments originating in countries not bound by the Hague Maintenance Protocol are also applicable with respect to judgments of Member States, if these judgments were issued before the Regulation’s date of application.71 Regarding decisions given in other Member States where the Brussels I Regulation is applicable, the date of entry into force of the Brussels I Regulation is decisive. For Austria, Belgium, Germany, Greece, Ireland, Finland, France, Italy, Luxembourg, the Netherlands, Portugal, Spain, Sweden and the United Kingdom the Regulation entered into force on 1 March 2002. For a number of other states, the Brussels I Regulation would have been applicable as of 1 May 2004 (the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovakia and Slovenia) and as of 1 January 2007 (for Romania and Bulgaria). In the Republic of Croatia, it entered into force on the same date as the Maintenance Regulation – 1 July 2013. The Maintenance Regulation provides that the Brussels I Regulation will continue to apply to procedures for recognition and enforcement underway on the date of application of the Maintenance Regulation. The Brussels court was faced with such a request. The facts of the case speak of both parties of German nationality. They established their residence in Brussels, where the husband worked for the European Commission. The husband filed an application for divorce before the German court on 17 January 2011. On 4 April 2012, the wife filed a claim for maintenance after divorce. On 27 January 2012, the wife also brought summary proceedings before the President of the Court of First Instance of Brussels in order to obtain provisional maintenance. The husband contested the jurisdiction of the Belgian courts, claiming the parties had reached an agreement on the jurisdiction of the German courts. The first judge agreed and dismissed the case. Upon the wife’s appeal, the Brussels Court of Appeal stated that the Maintenance Regulation should be applied in the case. The parties themselves had argued that the Brussels I Regulation was still applicable, since the husband had initiated the divorce proceedings on 17 January 2011, before the date of application of the



70 Maintenance 71 Monomeles

Regulation, Art 75(2). Protodikeio Rodou, 11 March 2014 No 98/2014, ELF20140311.

84  Mirela Župan and Martina Drventić Maintenance Regulation on 18 March 2011. The Court of Appeal stated that since the wife had brought a writ of summons for the maintenance claim on 27 January 2012, after the date of application of the Maintenance Regulation, the proceedings were ‘instituted’ within the meaning of Article 75(1) Maintenance Regulation. The application of the Maintenance Regulation is mandatory. Finally, the Court of Appeal of Brussels decided that there was a valid choice of court agreement between the parties conferring jurisdiction to the courts of Berlin.72

VII.  Demarcation between Spousal Maintenance and Matrimonial Property Challenges of characterisation in maintenance matters, particularly in relation to the matrimonial property matters, date far back to the early application of the Brussels Convention in Case C-143/78 De Cavel I.73 Mr Cavel applied for divorce in France together with an application for protective measures, and a freezing order covering the wife’s assets in Germany. By order from 1977, the French court authorised to place under seal the furniture, effects, and other objects in the couple’s flat in Frankfurt and in the safe rented in the wife’s name in a bank in the same city. The judge also authorised the freezing of the wife’s bank account. The husband then applied to the court in Frankfurt for an order for the enforcement of the French decision in reliance on Article 31 of the Brussels Convention. After the case was brought before the German Federal Court of Justice, it decided to ask for a preliminary ruling from the CJEU. The German court asked whether the matter of the case fell within the substantive scope of the Brussels Convention, or whether the French freezing order was related to the ‘rights in property arising out of matrimonial property’ – which have been excluded from the scope of the Brussels Convention by Article 1(1). The Court answered that the judicial decision authorising provisional protective measures such as the placing under seal or the freezing of the assets of the spouse in the course of proceedings for divorce do not fall within the scope of the Convention as defined in Article 1(1) if those measures are closely connected with either question of the status of the persons involved in the divorce proceedings or proprietary legal relations resulting directly from the matrimonial relationship or the dissolution thereof. The scope of application of the Brussels Convention explicitly excluded, among others, the rights in property arising out of a matrimonial relationship.74 This distinction was continued in the subsequent Community legislation, particularly the Brussels I Regulation75 and the Maintenance Regulation. Recently the Matrimonial Property Regimes Regulations and the Regulation on the Property Consequences of Registered Partnerships were adopted. Both would come into force on 29 January 2019 for Member



72 S-R

v R Bruxelles, 18 February 2013, Belgium, Second Instance. 143/78 Jacques de Cavel v Louise de Cavel [1979] ECR 1055, ECLI:EU:C:1979:83. 74 Brussels Convention, Art 1. 75 Brussels I Regulation, Art 1(2). 73 Case

Maintenance  85 States that participate in enhanced cooperation.76 As for the scope of application, these Regulations follow the line of previous reasoning and exclude maintenance obligations from their respective material scopes of application.77 Due to the specificities of the substantive laws of the Member States, the distinction between matrimonial property and maintenance issues is not so easy to draw, despite such a clear demarcation within the scope provisions.78 Recently, the CJEU has not been given the opportunity to give an explanation regarding the demarcation of the terms maintenance obligation and matrimonial property. The concept of ‘matrimonial property regime’ is conceived by the Matrimonial Property Regimes Regulation as a set of rules concerning the property relationships between the spouses and in their relations with third parties, as a result of marriage or its dissolution.79 At an earlier stage of the Proposal of this Regulation, the Explanatory Memorandum contained the reference to the autonomous nature of the term ‘matrimonial property regime.’ It suggested that the notion of ‘matrimonial property regime’ must be given an autonomous interpretation. Moreover, it should embrace considerations of both spouses’ daily management of their property and the liquidation of their property regime as a result of the couple’s separation or the death of one of the spouses.80 Academics unanimously advocate an autonomous concept,81 but interpretation still remains a challenge. The domestic substantive law of continental Europe distinguishes between matrimonial property and maintenance issues in a much clearer manner in comparison to England and Ireland.82 In the landmark Van den Boogaard v Laumen83 case the CJEU had to give general guidelines on how to decide whether an English financial order should be characterised as an order of maintenance or as an order of division of property. Mr Van den Boogaard and Ms Laumen were married in the Netherlands in 1957. In 1982, they moved to London. The judgment of 1990 the High Court dissolved the marriage and also dealt with an application made by Ms Laumen for full ancillary relief. The English court awarded her a capital sum so that the periodic payment of maintenance would be unnecessary. The money awarded also included money from the sale of moveable property and the transfer of a painting and immoveable property. In 1992, Ms Laumen lodged an application before the Dutch court for enforcement of the English judgment, relying on the 1973 Maintenance Convention. The Amsterdam court tried to find a basis to enforce the decision under the Brussels Convention and therefore it referred to the CJEU. Reference was made to the question whether the English 76 18 Member States (Sweden, Belgium, Greece, Croatia, Slovenia, Spain, France, Portugal, Italy, Malta, Luxembourg, Germany, the Czech Republic, the Netherlands, Austria, Bulgaria, Finland, and Cyprus). 77 Matrimonial Property Regimes Regulation and Regulation on the Property Consequences of Registered Partnerships, Rec 22, Art 1(2)(c). 78 J von Hein and H Dittmers, ‘Germany’ in Beaumont et al (n 12) 161. 79 Matrimonial Property Regimes Regulation, Art 3(1)(a). 80 Proposal for a Council Regulation on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes, 2 March 2016 COM (2016) 106 final, 2016/0059 (CNS), 7. 81 M Torga, ‘Drawing a Demarcating Line between Spousal Maintenance Obligations and Matrimonial Property in the Context of the New Instruments of European Union Private International Law’ in Beaumont et al (n 12) 427. 82 ibid 429. 83 Case C-220/95 Antonius van den Boogaard v Paula Laumen [1997] ECR I-01147.

86  Mirela Župan and Martina Drventić judgment was to be classified as a ‘judgment given in matters related to maintenance’, in which case leave to enforce would be properly granted, or whether it was to be classified as a ‘judgment given in a matter relating to rights in property arising out of a matrimonial relationship’, in which case the 1973 Maintenance Convention could provide no basis for the enforcement. The CJEU held that an order for a lump sum and transfer of ownership comes under the scope of maintenance as long as the purpose of the award is to ensure the former spouse’s maintenance. It makes no difference in this regard that payment of maintenance is provided for in the form of lump sums. The CJEU seems to suggest that the nature of the claim should be decisive in characterising claims as relating to maintenance as opposed to matrimonial property.84 The divisions between determining and deciding on claims resulting from the marriage dissolution can be seen in the decision of the Belgian court of first instance.85 The case file speaks of spouses of Dutch nationality that were married under the system of separation of property. The plaintiff initiated divorce proceedings. The defendant filed a counterclaim for maintenance after the divorce. The last marital residence of the parties was in Belgium, also the place where the plaintiff was still resident at the time of the introduction of the divorce proceedings. The Belgian court based its jurisdiction over the divorce proceedings according to Article 3(1)(a) of the Brussels IIa Regulation. Belgian law was applicable to divorce pursuant to Article 55(1) of the Belgian Code of Private International Law. The claim for liquidation and division of the marital property regime was settled according to Belgian national PIL rules. The courts of Hasselt had jurisdiction and applied the Dutch law. Finally, the Court had jurisdiction to hear the counterclaim for maintenance on the basis of Article 3 of the Maintenance Regulation. Belgian law was applicable according to the Hague Maintenance Protocol.

VIII.  Demarcations and Links between Maintenance and Other Legal Institutes Apart from the numerous concepts of maintenance arising from different ­jurisdictions, the national courts may also be confronted with claims for the establishment of the maintenance obligation which has not been foreseen by national family law, most often when the maintenance claim occurs with other legal institutes. In those cases, the courts should look for the solution in CJEU practice. The Croatian appellate court was faced with ancillary proceedings, including the claim for negative declaratory action on spousal maintenance, and the Maintenance Regulation was misinterpreted.86 Namely, the Maintenance Regulation distinguishes between two jurisdictional rules on ancillary proceedings. Pursuant to the first rule, the court which, according to its own law, has jurisdiction to entertain proceedings concerning the status of a person, has jurisdiction to decide on maintenance if the matter relating to maintenance is ancillary



84 Torga 85 X

(n 81) 40. v Y – AR 10/754/A – Rb. Hasselt, 27 December 2011. sud u Puli, Gž-269/15-2, 7 April 2015, CRS20150407.

86 Županijski

Maintenance  87 to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties.87 Pursuant to the second rule, the court, which, according to its own law, has jurisdiction to entertain proceedings concerning parental responsibility, has jurisdiction to decide on maintenance if the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties.88 In its interpretation in Case C-184/14 A v B89 the CJEU further emphasised that an application relating to maintenance concerning the child is ancillary only to the proceeding concerning parental responsibility. While correctly applying the rule on jurisdiction concerning the coherency of the child maintenance and parental responsibility proceedings, the above-mentioned Croatian appellate court did not act in accordance with Article 3(c) of the Maintenance Regulation as it declined its jurisdiction to decide on the request for a negative declaration of maintenance obligation toward the spouse. Neither the provisions of the Maintenance Regulation nor the recitals deal with the nature of the maintenance claim. While negative declaratory actions (so called ‘torpedo actions’) are uncommon in maintenance disputes,90 they are frequent under the matters covered with the Brussels Ia Regulation. The possible solution for the negative declaration on maintenance can be offered in the CJEU ruling in the Case C-133/11 Folien Fischer and Fofitec.91 Here the Court made a reference concerning the application for a negative declaration, relating to the absence of liability in tort or delict in competition matters. The question raised was whether Article 5(3) of the Brussels I Regulation was to be interpreted as meaning that jurisdiction in matters relating to tort or delict also exists in respect of an action for a negative declaration. The Court answered that Article 5(3) must be interpreted as meaning that an action for a negative declaration seeking to establish the absence of liability in tort, delict, or quasi-delict falls within the scope of that provision. Subsequently, when the negative declaration of maintenance occurred before the CJEU in the Case C-467/16 Schlömp92 concerning the lis pendens issue under the Lugano II Convention it was not questioned but rather accepted as a common type of claim. Given the similarities in the nature of the requests, a clear demarcation between maintenance matters and succession matters is also needed.93 The Succession Regulation excludes from its scope the questions relating to matrimonial property regimes and property regimes of relationships deemed by the law applicable to such relationships to have comparable effects to marriage and maintenance obligations, other than those arising by reason of death.94 However, exclusion relates to maintenance obligations other than those arising by reason of death. One has to define such maintenance obligations

87 Maintenance Regulation, Art 3(c). 88 ibid, Art 3(d). 89 See Case C-184/14 A v B [2015] ECLI:EU:C:2015:479. 90 M Abendroth, ‘Choice of Court in Matters Relating to Maintenance Obligations’ in Beaumont et al (n 12) 470. 91 Case C-133/11 Folien Fischer AG and Fofitec AG v Ritrama SpA [2012] ECLI:EU:C:2012:664. 92 Case C-467/16 Brigitte Schlömp v Landratsamt Schwäbisch Hall [2017] ECLI:EU:C:2017:993. 93 CJEU recently dealt with demarcation of the successions and matrimonial property in Case C-558/16 Doris Margret Lisette Mahnkopf [2018] ECLI:EU:C:2018:138. 94 Succession Regulation, Art 1(2)(d) and (e).

88  Mirela Župan and Martina Drventić that trigger the application of the Succession Regulation instead of the Maintenance Regulation. Maintenance obligations upon death are obligations that did not exist before death. Such are usually functionally equal to statutory succession for persons close to the deceased or are assigned to persons who are not entitled to the compulsory portion.95 Accordingly, the law designated as applicable in the succession proceedings treats such maintenance obligations as the claims persons close to the deceased may have against the estate or the successors.96 Hence, the law applicable to maintenance obligations determines whether an obligation exists, and under what conditions an obligation exists, after the death of the maintenance creditor; the law applicable to succession determines whether and to what extent the maintenance obligation is due to death and whether it can be transferred. The maintenance claim is equal to any other claim concerning the estate and the beneficiaries. The law applicable to succession determines whether the beneficiary is entitled to compensation from other beneficiaries.97

IX.  The Maintenance Regulation in Relation to Other EU and International Instruments The maintenance obligation modifies the Brussels I Regulation by replacing the provision of that regulation applicable to matters relating to the maintenance obligation. There is the exception from Article 75(2) of the Maintenance Regulation (see section VI.A.).98 The Maintenance Regulation replaces, in matters relating to the maintenance obligation, European Enforcement Order Regulation, except with regard to European Enforcement Orders on maintenance obligations issues in a Member State not bound by the 2007 Hague Maintenance Protocol.99 In enforcement matters, the Maintenance Regulation went further than the EEO Regulation. In contrast with the EEO Regulation,100 the Maintenance Regulation does not require that the authorities of the state of origin issue a certificate that attests that specific procedural requirements have been respected. Still, the Member States not bound by the Hague Maintenance Protocol are still left to use this instrument. The EEO Regulation allows judgments, court settlement, and authentic instruments in respect to uncontested claims to be automatically recognised and enforced in another Member State. There are no immediate grounds for refusal of enforcement. An example from national case law demonstrates the application. The parties to the proceedings were married but they separated. They entered into a notarised agreement which was signed in Frankfurt am Main on 26 July 2007. It provided for the payment of a lump sum and a monthly maintenance payment. The husband, Mr Vogel, decided not to



95 A-L Calvo Caravaca, The EU Succession Regulation, A Commentary (Cambridge University Press, 2016) 93.

96 Succession

Regulation, Art 23(2)(h). Caravaca (n 95) 93–94. 98 Maintenance Regulation, Art 68(1). 99 Maintenance Regulation, Art 68(2). 100 See European Enforcement Order Regulation, Art 6. 97 Calvo

Maintenance  89 pay the maintenance. A European Enforcement Order was issued by the German notary in order to enforce the agreement in the United Kingdom. Although the Maintenance Regulation was considered not to be applicable, the judge issued Registration orders, dated 14 December 2009 and 21 November 2011. In October 2012, the German notary withdrew the European Enforcement Order certificate. Mr Vogel made an application for the registration orders to be set aside. He also asked that all costs orders which had been made against him be undone and all of the relevant orders be discharged. The judge deciding on the case explained that once a document, which complies with a European Enforcement Order, has been delivered by somebody apparently entitled to deliver it to the court of enforcement, this court has no option but to permit enforcement of the European Enforcement Order. There is no mechanism for that court to challenge the validity of the European Enforcement Order certificate. Article 21(2) provides that the Member State of enforcement cannot in any circumstances review the substance of the European Enforcement Order or its certification.101 Another imminent Regulation interplaying with the Maintenance Regulation is the European Account Preservation Order Regulation establishing a European Account Preservation Order procedure to facilitate cross-border debt recovery in civil and commercial matters. Since its scope of application clearly excludes only the maintenance obligations arising by occasion of death, the conclusion may be drawn that all other maintenance obligations fall within its scope. The method of unification confined to the European Account Preservation Order Regulation significantly differs from the Maintenance Regulation, and no overlapping of its scope is evident. The European Account Preservation Order Regulation is merely the 28th regime of the preservation order, effectuated by national protective and preservation rules. The EAPO Regulation can be used in cross-border cases in which the bank account or accounts to be preserved by the EAPO are maintained in a Member State other than the Member State in which the creditor is domiciled or that where the court is seised to apply the EAPO.102 The EAPO is available before substantive proceedings on maintenance are initiated, during those proceedings or after a judgment is obtained. Therefore, a creditor may obtain an EAPO in the pre-judgment and post-judgment stages. The applicant must satisfy the court that there is an urgent need because there is a real risk that enforcement will be impeded without the EAPO or made substantially more difficult. Also, the creditor has to satisfy the court that he is likely to succeed on the substance in cases where judgment was not yet given.103 The preservation order application procedure is in principle an ex parte written procedure based on information and evidence provided by the creditor. Despite the perceived weaker position of a debtor, he or she is provided sufficient legal remedies to challenge the EAPO.104 One may wonder why a maintenance creditor would choose to use the EAPO instead of the Maintenance Regulation. The first advantage of the Maintenance Regulation is the Central Authority administrative cooperation mechanism, which is not a logistics 101 England and Wales, First Instance Lothschutz v Vogel [2014] EWHC 473 QB. 102 European Enforcement Order Regulation, Art 3. 103 ibid, Art 7. 104 See M Župan, ‘Cross-border recovery of maintenance taking account of the new European Account Preservation Order (EAPO)’ (2015) 16 ERA Forum 163.

90  Mirela Župan and Martina Drventić system for applications under the EAPO. However, the Central Authority and free legal aid are beneficial merely to child maintenance. In a spousal maintenance case, with a substantial amount of maintenance debt, a creditor may have an interest to seize the account and preserve the funds for future debt collection. Regulations contributing to more effective proceedings under the Maintenance Regulation are the Taking of Evidence Regulation105 and Service Regulation. Their scope of application is of a procedural nature, such as taking evidence and serving documents in relation to any other regulation in the civil justice area. Regarding other international instruments, it has already been enshrined that the mere maintenance obligation regime derived out of overall protection of human rights and, in particular, the rights of a child. Such a connotation with human rights is inevitable even in individual cases, as the ECHR has recently pointed out in the judgment of Battista v Italy.106 According to the facts of the case, the applicant was engaged in judicial separation proceedings from his wife. A provisional residence order was made in favour of both parents jointly in respect of the couple’s two children. Afterwards, the applicant asked the guardianship judge to issue him a new passport, in which the name of his son was to be entered. His former wife objected, arguing that the applicant was not making the maintenance payments ordered by the previous court decision. The guardianship judge rejected the applicant’s request, holding that it was inappropriate to issue the passport, given the imperative of protecting the children’s right to receive the maintenance payments and emphasised that the applicant was paying only a small proportion of the ordered maintenance amount, and that there was a risk that he would shirk his obligation completely if he were to travel abroad. Consequently, the police commissioner ordered the applicant to hand in his passport to the police station and amended his identity card, making it invalid for foreign travel. The court established that there had been a violation of Article 2 of Protocol No 4 of the Human Rights Convention. The court explained that there was civil law cooperation at the European and international level on the issue of the recovery of maintenance payments in a view of existing methods for obtaining recovery of debts outside national boundaries (Maintenance Regulation, Maintenance Convention, and 1956 New York Maintenance Convention) and that those instruments had not been taken into account by the authorities when applying the contested measure. The Court concluded that the measures imposed cannot be considered as necessary in a democratic society.

X. Conclusion Unlike the Convention which limits its substantive scope to child and spousal maintenance and only exceptionally for the other forms of maintenance, the Maintenance Regulation has a relatively broad scope of application. It applies to all maintenance obligations arising from a family relationships, parentage, marriage, and affinity. The term

105 Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters [2001] OJ L 174. 106 Battista v Italy App no 43978/09 (ECtHR, 2 December 2014).

Maintenance  91 relative is used due to the fact that the existence and nature of relationships which may give rise to maintenance obligations are covered by the national law of the Member States. While all national laws encompass the obligation of child maintenance and most of them the obligation of spousal maintenance, the collected case studies have not demonstrated any difficulties in the application of the Maintenance Regulation toward those forms of maintenance. On the other hand, due to the variety of methods by which children can be conceived, such as assisted reproductive technology and surrogacy, it is only a matter of time before these matters will be raised before the national courts. Consequently, additional research of this matter is needed. Equal arguments apply to the maintenance arising from registered partnerships of same-sex couples. No case dealing with the issue of maintenance obligation arising from the registered partnership was identified in the available national case law. The issue was never addressed by the CJEU either. However, courts should adhere to the combined application of the Regulation with the CJEU and the ECHR rulings in respect of a violation of private life and discrimination, as presented in this study. In terms of the temporal and geographical scope of application, the collected national case law suggests no difficulty in the application of the Maintenance Regulation.

92

8 Succession CARMEN AZCÁRRAGA MONZONÍS

I. Introduction The scope of application of the Succession Regulation covers substantive, personal, temporal and territorial aspects. Concerning the territorial aspect, three EU Member States are not bound by this instrument: the United Kingdom,1 Ireland and Denmark (Recitals 82 and 83). And regarding the other aspects of the scope of application, this chapter will deal with them in more detail both from theoretical and practical points of view. Practical commentary will include the existing practice before the national courts of Member States (still limited due to the brief period of application of this Regulation) and the European Court of Justice (ECJ). The analysis of the case law of the ECJ will cover the two judgments which have already interpreted the Regulation as well as other judgments that were rendered before the Regulation applied, but had already delimited some aspects related to succession matters. Furthermore, at the time of writing there was a third case pending, Oberle (C-20/17), set to interpret Article 4 regarding its possible application to the competence of national authorities for issuing domestic certificates of succession.2

II.  Substantive Scope of Application The substantive scope of application is regulated in Article 1. Under this provision, this Regulation shall apply to ‘succession to the estates of deceased persons’. This rule must be read with the definition of ‘succession’ included in Article 3(1)(a), which states that

1 Chapter drafted before the exit of the United Kingdom from the European Union. 2 Case C-20/17, Vincent Pierre Oberle [2018] ECLI:EU:C:2018:485. See the opinion of the Advocate General, ECLI:EU:C:2018:89. The Court ruled that ‘Article 4 of Regulation (EU) No 650/2012 … must be interpreted as precluding legislation of a Member State, such as that at issue in the main proceedings, which provides that, although the deceased did not, at the time of death, have his habitual residence in that Member State, the courts of that Member State are to retain jurisdiction to issue national certificates of succession, in the context of a succession with cross-border implications, where the assets of the estate are located in that Member State or the deceased was a national of that Member State’ (Judgment 21 June 2018).

94  Carmen Azcárraga Monzonís 1. For the purposes of this Regulation: (a) ‘succession’ means succession to the estate of a deceased person and covers all forms of transfer of assets, rights and obligations by reason of death, whether by way of a voluntary transfer under a disposition of property upon death or a transfer through intestate succession; …

The scope of application of the Succession Regulation is very broad, as reflected in Recital 9: The scope of this Regulation should include all civil-law aspects of succession to the estate of a deceased person, namely all forms of transfer of assets, rights and obligations by reason of death, whether by way of a voluntary transfer under a disposition of property upon death or a transfer through intestate succession.

The Regulation covers most of the issues usually qualified as successions in domestic laws of EU Member States, with some exceptions. For instance, the Regulation excludes the formal validity of dispositions of property upon death made orally (Article 1(2)(f)).3 By contrast, this Regulation shall not be applied to revenue, customs, or administrative matters (ie, the classical exclusion of public matters included in other Regulations). The Regulation will not be applied to other matters listed in Article 1 paragraph 2,4 some of which have been tackled by the ECJ. We refer to cases Kubicka (C-218/16)5 and Mahnkopf (C-558/16),6 both recently decided.

A.  Kubicka The first case the ECJ heard about this Regulation was decided on 12 October 2017. It considered rights in rem and the reasoning of the Court was the following: Ms Kubicka, a Polish national resident in Frankfurt an der Oder (Germany), was married to a German national. Two children, who were still minors, were born from that marriage. The spouses were joint owners, each with a 50 per cent share, of land in Frankfurt an der Oder, on which their family home was built. To make her will, Aleksandra Kubicka approached a notary practising in Słubice (Poland). Ms Kubicka wished to include in her will a legacy ‘by vindication’, which is allowed by Polish law. The legacy was in favour of her husband, concerning her share of ownership of the jointly owned immovable property in Frankfurt an der Oder. She wanted to leave the remainder of the assets in her estate in accordance with the statutory order of inheritance, whereby her husband and children would inherit it in equal shares. She expressly ruled out recourse to an ordinary legacy (legacy ‘by damnation’), as provided for by Article 968 of the Civil Code. Such a legacy would entail difficulties for the representation of her minor children, who would inherit, as well as additional costs.

3 A Bonomi and P Wautelet, El Derecho europeo de sucesiones. Comentario al Reglamento (UE) Nº 650/2012, de 4 de julio de 2012 (Cizur Menor (Navarra), Thomson Reuters Aranzadi, 2015) 59. 4 This list has been conceived as exhaustive given that it does not include the expression ‘in particular’ as decided in Art 23(2). Ibid, 61. 5 Case C-218/16 Aleksandra Kubicka [2017] ECLI:EU:C:2017:755. 6 Case C-558/16 Doris Margret Lisette Mahnkopf [2018] ECLI:EU:C:2018:138.

Succession  95 On 4 November 2015, the notary’s assistant refused to draw up a will containing the legacy ‘by vindication’ stipulated by Aleksandra Kubicka because a will containing such a legacy is contrary to German legislation and case law relating to rights in rem and land registration. These factors must be taken into consideration under Article1(2)(k) and (l) and Article 31 of the Succession Regulation. As a result, this type of will is unlawful. The notary’s assistant stated that, in Germany, a legatee may be entered in the land register only by means of a notarial instrument containing an agreement between the heirs and the legatee to transfer ownership of the immovable property. Foreign legacies ‘by vindication’ will be considered as legacies ‘by damnation’ in Germany by means of ‘adaptation’ under Article 31 of the Succession Regulation. This interpretation is clear from the explanatory memorandum of the German law, which amended national law in accordance with the provisions of the Succession Regulation.7 On 16 November 2015, Aleksandra Kubicka submitted to the notary an appeal against the decision refusing to draw up a will containing a legacy ‘by vindication’, pursuant to Article 83 of the Law on Notaries. She claimed that the provisions of the Succession Regulation should be interpreted independently. She further argued that none of those provisions justified restricting the provisions of succession law by depriving a legacy ‘by vindication’ of its material effects. Since her appeal to the notary was not upheld, Aleksandra Kubicka brought an appeal before the Sąd Okręgowy w Gorzowie Wielkopolskim (Regional Court, Gorzów Wielkopolski, Poland). The referring court considered that, pursuant to Article23(2)(b) and (e) and Article68(m) of the Succession Regulation, legacies ‘by vindication’ fell within the scope of succession law. However, it was uncertain to what extent the law in force in the place where the asset to which the legacy relates is located can limit the material effects of a legacy ‘by vindication’ as provided for in the chosen succession law. Under Article1(2)(k), the ‘nature of rights in rem’ is excluded from the scope of the Regulation. Thus, legacies ‘by vindication’, as provided for by succession law, cannot create rights which are not recognised by the lex rei sitae of the asset to which the legacy relates. However, it is necessary to determine whether that same provision also excludes from the scope of the Regulation grounds for acquiring rights in rem. In that regard, the referring court considered that the acquisition of rights in rem by means of a legacy ‘by vindication’ was governed exclusively by succession law. Polish legal literature on the matter took the same position. However, the explanatory memorandum of the German draft law on international succession law and amending the provisions governing the certificate of succession and other provisions (Gesetzesentwurf der Bundesregierung, BT-Drs. 17/5451 of 4March 2015) provides that German law is not obligated, in the context of the Succession Regulation, to recognise a legacy ‘by vindication’ based on a will drawn up according to the law of another Member State. Regarding Article1(2)(l), the referring court also speculated whether the law governing registers of rights in immoveable or moveable property may have an impact on the effect of a legacy under succession law. In that regard, the court states that if the legacy is recognised as producing material effects in matters relating to succession, the law

7 Internationales Erbrechtsverfahrensgesetz (Law on International Succession Proceedings), of 29 June 2015, BGBl I, 1042.

96  Carmen Azcárraga Monzonís of the Member State in which such a register is kept would govern only the means by which the acquisition of an asset under succession law is proven and could not affect the acquisition itself. Thus, the referring court considered that the interpretation of Article 31 of the Succession Regulation also depended on whether the Member State in which the legacy’s asset is located had the authority to question the material effect of that legacy, which arose under the chosen succession law. In those circumstances the Sąd Okręgowy w Gorzowie Wielkopolskim (Regional Court, Gorzów Wielkopolski, Poland) decided to stay the proceedings and refer the following question to the Court of Justice for a preliminary ruling: Must Article1(2)(k), Article1(2)(1) and Article31 of Regulation (EU) No650/2012 of the European Parliament and of the Council of 4July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Successionbe interpreted as permitting refusal to recognise the material effects of a legacy by vindication (legatum per vindicationem), as provided for by [Polish] succession law, if that legacy concerns the right of ownership of immovable property located in a Member State the law of which does not provide for legacies having direct material effect?

In sum, the question asked whether Articles 1(2)(k) and (l), or 31 of the Succession Regulation should be interpreted as rejecting the effects of the legatum per vindicationem foreseen by the law governing the succession, when an immoveable is situated in a Member State where the legatum per vindicationem does not have real direct effects.8 In Germany, a legacy solely leads to a claim for transfer of the property (Damnationslegat). In other countries (such as France, Italy and Poland) a legacy causes a direct change of ownership (Vindikationslegat). The problem raised in this field is whether such a direct transfer of property is subject to the rules of successions law or the national property law. The dominant opinion in Germany is that the lex rei sitae (the property law) should prevail. Therefore, if the property is situated in Germany, the Vindikationslegat was converted into a Damnationslegat. However, it has been pointed out that the Succession Regulation could bring a change to this opinion.9 Article 23(2)(e) states that the applicable law shall govern the transfer of the rights to the legatees,10 so the successions law might prevail under the Regulation. On the other hand, Article 1(2)(l) states that ‘any recording in a register of rights in immovable or movable property, including the legal requirements for such recording and the effects of recording or failing to record such rights in a register’ are excluded from the scope of the Regulation. Moreover, Article 31 could lead to a Vindikationslegat being

8 Explanation provided by the A Gandia Sellens, C Camara, A Faucon Alonso, Ph Siaplaouras, Report on Internationally Shared Good Practices (EUFam’s Project, 2016) 49 at www.eufams.unimi.it/wp-content/ uploads/2017/06/Report-on-Internationally-Shared-Good-Practices-v2.pdf. 9 MJ Escher and J Wittmann, Report on German Good Practices (EUFam’s Project, 2016) 12 at www.eufams. unimi.it/wp-content/uploads/2017/01/EUFAMS-German-report-on-good-practices.pdf. 10 Art 23(2)(e): ‘2. That law shall govern in particular: … e) the transfer to the heirs and, as the case may be, to the legatees of the assets, rights and obligations forming part of the estate, including the conditions and effects of the acceptance or waiver of the succession or of a legacy.’

Succession  97 converted into a Damnationslegat as it calls for an adaption of rights in rem under certain circumstances.11 However, some support that its application has to be rejected ‘pursuant to its wording and to ensure an international harmony of court decisions’. Therefore, it is argued that succession law should be applicable and that the content of the property right should not be confused with the mode of its transfer.12 In fact, the Kubicka case demonstrates that under Recital 15 of the Regulation, this legal instrument does not affect the limited number (numerus clausus) of rights in rem known in the national law of some Member States. Also, a Member State should not be required to recognise a right in rem relating to property located in that Member State if the right in question is unknown in its law. In this case, both legacies constitute methods of transfer of ownership of an asset recognised in both legal systems concerned. As stated by the Advocate General, the choice of a legacy ‘by vindication’ rather than a legacy ‘by damnation’ does not alter the content of the right to be exercised regarding the asset. It simply allows a right in rem to be transferred directly to the legatee, rather than being passed on indirectly by establishing a right in personam for the legatee. The direct transfer of a property right through a legacy ‘by vindication’ concerns only the arrangement by which that right in rem is transferred at the time of the testator’s death. According to Recital 15, this is precisely what the Succession Regulation seeks to allow, in accordance with the law governing succession. Therefore, Articles 1(2)(k) and (l) and 31 of the Regulation ‘must be interpreted as precluding refusal of recognition in a Member State whose legal system does not provide for legacies ‘by vindication’ of the material effects produced by such a legacy when succession takes place in accordance with the chosen succession law.’

B.  Mahnkopf Second, the exclusion from the scope of application of the Regulation related to matrimonial property regimes also raised concerns. Academics have stressed the close link between the two matters and the need to coordinate the solutions provided.13 Recital 12 states: … this Regulation should not apply to questions relating to matrimonial property regimes, including marriage settlements as known in some legal systems to the extent that such settlements do not deal with succession matters, and property regimes of relationships deemed to have comparable effects to marriage. The authorities dealing with a given succession under this Regulation should nevertheless, depending on the situation, take into account the winding-up of the matrimonial property regime or similar property regime of the deceased when determining the estate of the deceased and the respective shares of the beneficiaries.

11 Art 31: ‘Where a person invokes a right in rem to which he is entitled under the law applicable to the succession and the law of the Member State in which the right is invoked does not know the right in rem in question, that right shall, if necessary and to the extent possible, be adapted to the closest equivalent right in rem under the law of that State, taking into account the aims and the interests pursued by the specific right in rem and the effects attached to it.’ 12 Escher and Wittmann (n 8) 13. 13 G Palao Moreno, ‘Artículo 1. Ámbito de aplicación’ in JL Iglesias Buigues and G Palao Moreno, (eds), Sucesiones internacionales. Comentarios al Reglamento (UE) 650/2012 (Valencia, Tirant lo Blanch, 2015) 37.

98  Carmen Azcárraga Monzonís It has been underlined that ‘it is a typical German problem that the inheritance of a spouse can be increased by the surviving spouse if he/she opts for the resolution of the matrimonial property regime according to the rules of succession’. Therefore, the possibility of this supplementary quarter share of the inheritance has been the object of debate. Before the application of the Regulation, the prevailing opinion in Germany did not classify it as part of succession law, but of matrimonial property law.14 The ECJ recently clarified this issue in the Mahnkopf case (C-558/16). The questions asked by the referring court were the following: Is Article 1(1) of the EU Succession Regulation to be interpreted as meaning that the scope of the regulation (‘succession’) also covers provisions of national law which, like Paragraph 1371(1) of the German Bürgerliches Gesetzbuch (BGB, Civil Code), govern questions relating to matrimonial property regimes after the death of one spouse by increasing the share of the estate on intestacy of the other spouse? If the first question is answered in the negative, Articles 68(l) and 67(1) of the EU Succession Regulation could be interpreted to mean the share of the surviving spouse may be recorded in the European Certificate of Succession However, a portion of the share stems from an increase pursuant to a rule governing matrimonial property regimes, like Paragraph 1371(1) of the Civil Code. If this question can be answered in the negative, it can also be answered affirmatively in exceptional situations. For instance, exceptional situations include: (a) the purpose of the Certificate of Succession is limited to asserting rights of the heirs in a certain other Member States to property of the deceased located there; and (b) the ruling on succession (Articles 4 and 21 of the EU Succession Regulation) and – irrespective of which conflict-of-law rules are applied – the questions relating to matrimonial property regimes are to be assessed based on the same national legal system. If the first and second questions are answered in the negative, Article 68(l) of the EU Succession Regulation could be interpreted to mean that the share of the surviving spouse increased pursuant to a rule governing matrimonial property regimes may be recorded in full in the European Certificate of Succession. But this recording may be for information purposes only because of the increase.

On 1 March 2018, the Court answered the first question in the positive, and did not tackle the second and third questions. In first place, following the opinion of the Advocate General (points 78 and 93) it ruled that: [A]ccording to the information available to the Court, Paragraph 1371(1) of the BGB concerns not the division of assets between spouses but the issue of the rights of the surviving spouse in relation to assets already counted as part of the estate. Accordingly, that provision does not appear to have as its main purpose the allocation of assets or liquidation of the matrimonial property regime, but rather determination of the size of the share of the estate to be allocated to the surviving spouse as against the other heirs. Such a provision therefore principally concerns succession to the estate of the deceased spouse and not the matrimonial property regime. Consequently, a rule of national law such as that at issue in the main proceedings relates to the matter of succession for the purposes of Regulation No 650/2012.



14 Escher

and Wittmann (n 8) 12.

Succession  99 Furthermore, the ECJ added that this interpretation is consistent with the scope of the Matrimonial Property Regimes Regulation. This Regulation expressly excludes from its scope the ‘succession to the estate of a deceased spouse’ pursuant to Article1(2)(d). And finally, following also the opinion of the Advocate General (point 102), the Court supported the classification of the share falling to the surviving spouse under a provision of national law (such as paragraph 1371(1) of the BGB) as succession-related. Thus, information concerning that share is to be included in the European Certificate of Succession, with all the effects described in Article 69 of the Succession Regulation. The Court considered that the objectives of the European Certificate of Succession would be impeded considerably in a situation such as the one at issue if it did not include full information relating to the surviving spouse’s rights regarding the estate. Hence: [T]he answer to the first question is that Article1(1) of Regulation No650/2012 must be interpreted as meaning that a national provision, such as that at issue in the main proceedings, which prescribes, on the death of one of the spouses, a fixed allocation of the accrued gains by increasing the surviving spouse’s share of the estate falls within the scope of that regulation.

Besides these two recent judgments, other previous decisions of the ECJ about succession matters in the framework of other European instruments must also be taken into consideration. On the one hand, the judgment of the Court of 31 March 1982 in Case 25/81 CHW v GJH dealt with the interpretation of the terms ‘wills and succession’ in the framework of the Brussels Convention of 1968.15 The referring court asked whether an application for a provisional measure for the return of a document marked ‘codicil’ (which is likely to be used as evidence in an action relating to a husband’s management of his wife’s separate property) should be excluded from the scope of the convention, in accordance with the second paragraph of Article 1. The codicil could be related to either ‘wills and succession’ or ‘rights in property arising out of a matrimonial relationship’, and both matters were excluded from the scope of application of the Brussels Convention (now Brussels Ia Regulation).16 The Court considered the concept of ‘rights in property arising out of a matrimonial relationship’ and concluded it was included.17 Consequently, there was no need to decide if it should be included in succession matters because the Court’s interpretation excluded the issue from the scope of ‘wills and succession’. On the other hand, the judgment of the Court of 6 October 2015, in Case C-404/14 Marie Matoušková should also be mentioned.18 In the context of the application of the Brussels IIa Regulation, the ECJ decided whether an inheritance settlement agreement

15 Case 25/81 C.H.W. v G.J.H. [1982]ECR 01189, ECLI:EU:C:1982:116. 16 Exclusion currently stated in Art 1(2) of the Brussels Ia Regulation. 17 The Court ruled that the management of the wife’s property must be considered to be closely connected with the proprietary relationship between the spouses flowing directly from their marriage bond. Therefore, an application for provisional measures to secure the delivery of a document to prevent the statements which it contains from being used as evidence in an action concerning the management of the wife’s property must also be connected to rights in property arising out of a matrimonial relationship and within the meaning of the convention because of its ancillary nature. Because of the above, an application for provisional measures to secure the delivery of a document to prevent it from being used as evidence in an action concerning a husband’s management of his wife’s property does not fall within the scope of the Brussels Convention if such management is closely connected with the proprietary relationship resulting directly from the marriage bond. 18 Case C-404/14 Matoušková [2015] ECLI:EU:C:2015:653.

100  Carmen Azcárraga Monzonís between the surviving spouse and minor children (represented by a guardian ad litem) was related to parental responsibility or to succession. The Supreme Court of the Czech Republic (Nejvyšší soud) decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling: If an agreement on the sharing-out of an estate concluded on behalf of a minor by his or her guardian ad litem requires the approval of a court in order to be valid, is that decision on the part of the court a measure within the meaning of Article 1(1)(b) or a measure within the meaning of Article 1(3)(f) of Regulation No2201/2003?

The ECJ recalled that, ‘the approval of the agreement on the sharing-out of the estate is a measure taken having regard to the legal capacity of the minor, which aims to protect the best interests of the child and which is required, under Czech law, for legal acts relating to the administration of property which are not routine matters’. The need to obtain this approval is a direct consequence of the status and capacity of the minor children. Also, this approval constituted a protective measure for the child relating to the administration, conservation, or disposal of the child’s property in the exercise of parental responsibility, within the meaning of Articles 1(1)(b) and 2(e) of Brussels IIa Regulation. Consequently, this issue was excluded from the scope of succession matters.

III.  Personal Scope of Application Some issues related with the personal scope of application of this Regulation have also been raised in certain national decisions.19 For instance, the Spanish Resolución de la Dirección General de Registros y del Notariado (DGRN) of 15 June 201620 deals with the possible application of the Regulation to the will of a UK national whose habitual residence was in Spain. The Spanish administrative authority concluded correctly that the Regulation applied in this case, even though the United Kingdom is not bound by this legal instrument. The Court recalled that universal application is a common feature of European Regulations in the field of applicable law. Article 20 of the Succession Regulation states that ‘Any law specified by this Regulation shall be applied whether or not it is the law of a Member State’. Therefore, the proceedings opened in Spain, before a Spanish notary, were governed by the Regulation and the rules of Chapter III, which deal with the determination of the relevant law governing the case. Furthermore, it is also worth noting in this case that the British de cuius granted a will before the Regulation entered into force (2003).This fact led to the possibility of applying the transitional provisions laid down in Article 83. The Spanish authority supported the testamentary disposition which included a professio iuris where the testator had chosen his national law to govern his future succession (British law). Thus, the forced shares Spanish law grants to descendants (legítimas sucesorias) did not have to be respected.



19 Gandia 20 BOE

Sellens, Camara, Faucon Alonso, Siaplaouras(n 7) 50. No 175, 21 July 2016.

Succession  101 A second example about the personal scope of application of this Regulation was the decision of the first instance court of Yambol (Bulgaria).21 This decision tackled the issue of whether a British citizen had a right to a European Certificate of Succession. The Regional Court held that a British citizen could not obtain a certificate because the UK was not a party to the Regulation. The District Court of Yambol quashed the first decision and sent the case back to the Regional Court. The District Court explained that Recital 72 of the Regulation clearly stated that the courts should issue the certificate upon request, so this rule is mandatory.

IV.  Temporal Scope of Application Within these terms two different aspects shall be distinguished: the entry into force of the Regulation and its entry into application. On the one hand, regarding the entry into force, Article 84 states that ‘This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union’, ie on 17 August 2012.22 On the other hand, when it comes to the temporal application of this instrument, the same provision states that ‘It shall apply from 17 August 2015, except for Articles 77 and 78, which shall apply from 16 January 2014, and Articles 79, 80 and 81, which shall apply from 5 July 2012’. These latter provisions refer to a number of obligations for Member States and the Commission about providing updated information and the adoption of forms, all of them decisive for the correct implementation of the Regulation. Therefore, except for those exceptions, ‘This Regulation shall apply to the succession of persons who die on or after 17 August 2015’, as conveniently clarified in Article 83. However, together with this general rule, some transitional provisions must also be taken into consideration. Firstly, the instrument covers the possibility of a choice of law prior to 17 August 2015, which shall be valid if it meets the conditions laid down in Chapter III or in application of the choice-of-law rules which were in force, at the time the choice was made, either in the state in which the deceased had his habitual residence or in any of the states whose nationality he possessed. Secondly, another rule covers the scenario where the deceased made a disposition of property upon death prior to 17 August 2015.A disposition shall be admissible and valid in substantive and formal terms if it meets the conditions laid down in Chapter III or if it is admissible and valid in substantive and formal terms in application of the rules of Private International Law which were in force, at the time the disposition was made, in any of these countries: either the state in which the deceased had his habitual residence or in any of the states whose nationality he possessed or in the Member State of the authority dealing with the succession. Finally, the last rule provided by Article 83(4) must also be highlighted because its application may affect the outcome of successions governed by dispositions of property

21 Gandia Sellens, Camara, Faucon Alonso, Siaplaouras(n 7) 50. 22 JL Iglesias Buigues, ‘Artículo 84. Entrada en vigor’ in JL Iglesias Buigues and G Palao Moreno (eds), Sucesiones internacionales. Comentarios al Reglamento (UE) 650/2012 (Valencia, Tirant lo Blanch, 2015) 675.

102  Carmen Azcárraga Monzonís made before the referred date. Under this provision ‘If a disposition of property upon death 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.’ From the practical perspective, two decisions of the Spanish DGRN underlined the temporal scope and the transitional provisions:23 the aforementioned Resolución of 15 June 2016 and a second decision given by the same authority on 10 April 2017.24 In the first case, the deceased was a British citizen, while in the second one the deceased was a German national. Both had their habitual residence in Spain at the time of death. The British citizen made his will in 2003 before a Spanish notary and died after 17 August 2015. The German national made his will in 2014 (the Regulation was already in force although it did not apply), and passed away after 17 August 2015 as well. Both appointed as sole heir their respective wives, although they had at least one child – a forced heir, according to Spanish law. In both cases, there was a discussion about the applicable law: whether it was Spanish law, as a default rule, or English or German law. In the first case, the DGRN concluded that there was a professio iuris in favour of English law, whereas in the other case there was not a professio iuris in favour of German law. Concerning the temporal issues, the first decision of 2016 concerned a will made in 2003 (before the application of the Regulation). This fact led to a discussion on the possible application of Article 83 regarding transitional provisions, and which was actually applied. Thus, the court accepted the choice of national law (British law) made in a disposition upon death made prior to 17 August 2015. Regarding the decision of 2017, the court recalled the importance of adopting rules favouring predictability and legal certainty (Recital 80). These rules allow citizens to avoid problems due to legal changes after having arranged their inheritance in a certain way before the entry into application of the Regulation. The will covered by this decision was made before a Spanish notary in 2014, when the Regulation was in force but not in application. The testator did not make an explicit choice of law, but the Registrar ruled otherwise and decided that the testator had chosen his national law (German law). The case reached the DGRN at higher instance, which did not find such a choice given that there was not an ‘explicit professio iuris or undoubted in its terms’. The DGRN ruled that the law of the habitual residence (Spanish law) applied on the basis of the joint interpretation of Articles 26(1)(d) and 83(3) of the Succession Regulation.



23 Gandia 24 BOE

Sellens, Camara, Faucon Alonso, Siaplaouras (n 7) 50–51. No 99, 26 April 2017.

9 Matrimonial Property Regimes PABLO QUINZÁ REDONDO

I. Introduction On 8 July 2016, two new EU Regulations, whose negotiation took place concurrently, were published in the Official Journal of the European Union: the Matrimonial Property Regimes Regulation and the Regulation on the Property Consequences of Registered Partnerships. Both Regulations will complete the unstoppable process of Europeanisation of private international law in the area of family law. The adoption of both Regulations, however, has not been a bed of roses. The adoption required years of hard work and more than 10 drafts since the Proposals of 2011 were launched.1 But the negotiation reached a point of no return in the meeting of the Justice and Home Affair Council of 3–4 December 2015, where the impossibility of achieving the necessary unanimity to adopt these instruments was decided.2 As a result of that, a large number of Member States – Belgium, Bulgaria, the Czech Republic, Germany, Greece, Spain, France, Croatia, Italy, Luxembourg, Malta, the Netherlands, Austria, Portugal, Slovenia, Finland and Sweden – indicated their wish to establish an enhanced cooperation among themselves in order to apply both Regulations in their territories.3 This chapter will focus only on the Matrimonial Property Regimes Regulation4 and will only deal with its scope of application, not with the private international rules stricto sensu – international jurisdiction, law applicable and recognition and enforcement. Taking this into account, the scope of application will be analysed considering four different approaches: substantive, territorial, personal and temporal. 1 Proposal for a Council Regulation on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes, COM (2011) 126 final; and Proposal for a Council Regulation on jurisdiction, applicable law and the recognition and enforcement of decisions regarding the property consequences of registered partnerships, COM (2011) 127 final. 2 See www.consilium.europa.eu/en/meetings/jha/2015/12/03-04/. 3 Council Decision (EU) 2016/954 of 9 June 2016 authorising enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions on the property regimes of international couples, covering both matters of matrimonial property regimes and the property consequences of registered partnerships [2016] OJ L 159/16. 4 The scope of application the Regulation on the Property Consequences of Registered Partnerships will be analysed by G Palao Moreno, ‘Property Consequences of Registered Partnerships’ in ch 10 of this book.

104  Pablo Quinzá Redondo

II.  Substantive Scope of Application As usual in Private International Law Regulations, Article 1 of the Matrimonial Property Regimes Regulation establishes the substantive scope of application, in both positive and negative ways. This provision, however, is not the only one dealing with the substantive scope of application in a broad way. On the one hand, it is important to consider the content of Article 3, which deals with some important definitions that apply to the Regulation. On the other hand, Article 27, even though it specifically refers to the scope of the applicable law, leads to complete the substantive scope of application of the Regulation.

A.  Issues Included As can be inferred from the title, the Matrimonial Property Regimes Regulation is applicable to matrimonial property regimes. To that effect, the Regulation defines this concept in Article 3(1)(a) as follows: ‘a set of rules concerning the property relationships between the spouses and in their relations with third parties, as a result of marriage or its dissolution’. Nevertheless, the key concept of the matrimonial property regime can be found in Recital 18 of the Regulation. As can be inferred from its content, although the concept must be interpreted autonomously, the Regulation follows a civil law approach to this matter, as opposed to the common law legal system, where the concept of matrimonial property regimes is not known as such. In English and Welsh common law, marriage does not produce, per se, economic consequences between the spouses,5 except for certain general ‘minimum’ economic rights and duties, such as contributions towards maintenance or protection of the family dwelling.6 In these legal systems, the real economic effect of the marriage is produced at the time of divorce, legal separation, marriage annulment, or death of one of the spouses, each of which giving rise to different scenarios depending on whether the spouse or spouses have made use of their private autonomy. In particular, when the marriage is terminated because of a marital breakdown, the courts distribute the spouses’ assets and decide on other economic consequences,7 mainly on maintenance obligations, and follow ample discretional criteria.8 However, it is also true that the courts of England and Wales have assigned 5 N Lowe and G Douglas, Bromley’s Family Law, 10th edn (Oxford, Oxford University Press, 2007) 129; S Harris-Short and J Miles, Family Law. Text, Cases and Materials, 2nd edn (Oxford, Oxford University Press, 2011) 117 and 163–67; R Probert, Cretney and Probert’s Family Law, 8th edn (London, Sweet & Maxwell, 2012) 99–100. 6 See Art 1(a) and (b) of the Domestic Proceedings and Magistrates’ Courts Act 1978 and Arts 30 and ff of the Family Law Act 1996, respectively. 7 Known as the ‘tool box’, see J Miles, ‘England and Wales’ in J Scherpe (ed), Marital agreements and private autonomy in comparative perspective (Oxford, Hart, 2012) 93, or ‘global package solution’ in A Dutta, ‘Cross-border enforcement of English Ancillary relief orders – fog in the channel, Europe cut off ’ (2010) Family Law Journal 385. 8 The starting point for the distribution and allocation of the resources of the spouses in the case of a breakdown of the marriage is the Art 25(1) of the Matrimonial Causes Act 1973, which states that the judge will consider all the circumstances of the case, giving priority to the welfare of any child of the family. Alongside this, Art 25(2) lists factors that the judge shall take into consideration. It is necessary to point out that in England and Wales, the judges have particularly taken into consideration the most relevant case law in this topic: White v White [2000] 1 UKHL 54; Miller v Miller; McFarlane v McFarlane [2006] UKHL 24; Charman v Charman [2007] EWCA Civ. 503.

Matrimonial Property Regimes  105 growing importance to marital agreements in order to determine the economic effects of a breakdown of a marriage.9 Once it is clear that this Regulation follows a civil law approach of the subject matter, it is necessary to make another clarification, since matrimonial property regime is a broad and inclusive concept dealing with two different ideas.10 Firstly, it encompasses all those rights and duties of the spouses that have economic content and refers to a series of primarily financial provisions that apply just because of the existence of the marriage, without any possibility for the parties to wave or change them. This group of legal relationships is known as régime primarie (primary matrimonial property regime). Good examples can be the protection of the family home and household goods, the obligation of the spouses to contribute to the needs of the family according to their abilities, or the mutual duty to inform the other spouse about his/her assets and debts and about significant acts of administration.11 Are they included in the scope of application of the Regulation? In our opinion, the answer should be affirmative, since the aforementioned Recital 18 of the Regulation states that ‘it should encompass … rules from which the spouses may not derogate’. Alongside this, the Regulation is obviously going to be applicable to the secondary matrimonial property regime, which presents a double typology: those regimes that are agreed upon by the parties, and legal regimes. The first refers to the possibility of the spouses to organise their assets in accordance with their specific interests, using matrimonial property agreements. However, this option has a limited degree of application in real life. Most of the time, spouses remain silent with regard to the organisation of their matrimonial property regime. This, in turn, leads to the application of legal matrimonial property regimes, which consist of regimes provided by the law if the spouses have not expressed any preference regarding their economic obligations as part of their marriage. These legal regimes, applicable in lieu of an agreement made by the parties, can be distinguished into three general groups that coexist within the different European Union Member States: community, participation, and separation regimes, all of which present diverse peculiarities regarding the composition, administration, and distribution of the assets during the dissolution of marriage. Recital 18 states: ‘optional rules to which spouses may agree in accordance with the applicable law’ and ‘it includes … property arrangements’. Thus, the Regulation clearly covers optional matrimonial property regimes,12 while by the wording of the same recital ‘any default rules of the applicable law’ there is a clear reference to legal matrimonial property regimes. In other words, we are of the opinion that the Matrimonial Property Regimes Regulation addresses the secondary matrimonial property regimes in both senses.13

9 See particularly Radmacher v Granatino [2010] UKSC 42. 10 W Pintens, ‘Matrimonial property law in Europe’ in K Boele-Woelki, K Miles and J Scherpe (eds), The future of family property in Europe (Cambridge/Antwerp/Portland, Intersentia, 2011) 20. 11 See principles 2 to 8 of the Commission on European Family Law regarding property relations between spouses, see K Boele-Woelki, F Ferrand, C González Beilfuss, M Jäntera-Jareborg, N Lowe, D Martiny and W Pintens, Principles of European family law regarding property relations between spouses (Cambridge/ Antwerp/Portland, Intersentia, 2013) 38–91. 12 There are many references to matrimonial property agreements alongside the Regulation (Recital 48, Art 3(1)(b), Art 25, and Art 27(g)). 13 It is true that the expression ‘any default rules of the applicable law’ does not mention explicitly legal matrimonial property regimes, although the most logical interpretation would be that it is referring to them.

106  Pablo Quinzá Redondo

B.  Issues Excluded Once the positive scope of application has been analysed, it is time to mention those questions not covered by the Matrimonial Property Regimes Regulation. In general terms, the negative scope of application is provided in Articles 1(1) and 1(2) of the Matrimonial Property Regimes Regulation. In particular, together with the common exclusion regarding revenue, customs, or administrative matters, the Regulation does not cover the following subject matters: the legal capacity of spouses;14 the existence, validity or recognition of a marriage;15 maintenance obligations;16 the succession to the estate of a deceased spouse;17 social security; the entitlement to transfer or adjustment between spouses, in the case of divorce, legal separation or marriage annulment, of rights to retirement or disability pension accrued during marriage and which have not generated pension income during the marriage;18 the nature of rights in rem relating to a property;19 and any recording in a register of rights in immoveable or moveable property, including the legal requirements for such recording, and the effects of recording or failing to record such rights in a register.20

III.  Geographical Scope of Application As explained above, the Matrimonial Property Regimes Regulation is not going to be applicable in all Member States of the European Union because of the failed attempt to reach the required unanimity (Article 81(3) TFEU). Given this situation, some Member States established an enhanced cooperation among themselves (Article 20 TEU and Articles 326 and ss. TFEU) to adopt the Matrimonial Property Regimes Regulation – together with the Regulation on the Property Consequences of Registered Partnerships. The use of the enhanced cooperation is not new in the field of family law, since Rome III Regulation was also adopted by this procedure. At the moment, Member States taking part in the enhanced cooperation are those which initially encouraged this procedure (Belgium, Bulgaria, the Czech Republic,

14 However, according to Recital 20 of the Matrimonial Property Regimes Regulation, this exclusion should not cover the specific powers and rights of either or both spouses with regard to property, either as between themselves or as regards third parties, as these powers and rights should fall under the scope of this Regulation. 15 The Matrimonial Property Regimes Regulation clearly states that the concept of marriage should be determined according to the national law of each Member State, thus not offering an autonomous concept (see Recitals 17, 21, 38 and 64). As a result of that, it seems that the Matrimonial Property Regimes Regulation should apply to matrimonial property regimes of same-sex couples, provided that the law of the forum recognises/foresees such marriages. 16 Issue covered by the Maintenance Regulation. 17 Issue covered by the Succession Regulation. 18 However, according to Recital 23, the Regulation should govern in particular the issue of classification of pension assets, the amounts that have already been paid to one spouse during the marriage, and the possible compensation that would be granted in case of a pension based upon common assets. 19 See Recitals 24 to 26 of the Matrimonial Property Regimes Regulation. 20 See Recitals 27 and 28 of the Matrimonial Property Regimes Regulation.

Matrimonial Property Regimes  107 Germany, Greece, Spain, France, Croatia Italy, Luxembourg, Malta, the Netherlands, Austria, Portugal, Slovenia, Finland and Sweden) together with Cyprus, whose wish to participate was expressed just a few months after the rest.21 As a result of that, the total number of Member States that will apply the Matrimonial Property Regimes Regulation after its entry into application will be 18. Although it is not official, the total will probably be 19, since Estonia will also join this initiative.22 It is not the purpose of this contribution to focus on the reasons of the Member States not participating in the enhanced cooperation. However, it is important to summarise briefly their particular situations. First of all, the United Kingdom and Ireland decided not to opt in to the Matrimonial Property Regimes Regulation.23 As is well known, common law legal systems are not familiar with the concept of matrimonial property regimes, so it is reasonable for these Member States not to apply the Regulation. Despite this, it must be said that both legal traditions – civil and common law – are converging, since a common core exists in marital breakdowns.24 Secondly, it has to be taken into account that Denmark is excluded from the judicial civil cooperation of the European Union.25 Taking this into account, the six Member States where the Matrimonial Property Regimes Regulation is not going to be applicable, if nothing changes, are: Poland, Hungary, Slovakia, Latvia, Lithuania and Romania. The reasons behind their position seem to be socio-political and related to the non-recognition of same-sex unions, neither in the case of a marriage nor in the case of a registered partnership. To address this concern, both Regulations – the Matrimonial Property Regimes Regulation and the Regulation on the Property Consequences of Registered Partnerships – included Article 9 to allow the courts of a Member State where such a marriage or registered partnership is not recognised to decline its jurisdiction for property disputes. However, it seems that this provision did not offer sufficient guarantees for those Member States. Therefore, they decided not to support the Regulation. As can be inferred, the substantive differences between some Member States regarding family law are still profound enough to hinder the unification of private international rules in some matters.

21 See Recital 11 of the Matrimonial Property Regimes Regulation. 22 JC Fernández Rozas, ‘Un hito más en la comunitarización del Derecho internacional privado: regimens económico matrimoniales y efectos patrimoniales de las uniones registradas’ (2016) 40 La Ley Unión Europea 8. 23 It must be remembered that according to Art 4 of Protocol 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security, and justice, annexed to the TFEU, the United Kingdom and Ireland may express at any time their wish to adopt the Regulation. 24 S Cretney, ‘Community of property imposed by judicial decision’ (2003) 119 LQR 349; E Cooke, T Akoto, A Ballow and T Callus, ‘A community of property-A regime for England and Wales: interim report’ (2005) International family law 133–37; B Braat ‘Matrimonial property law: diversity of forms, equivalence in substance?’ in M Antokolskaia (ed), Convergence and divergence of family law in Europe (Cambridge/ Antwerp/Portland, Intersentia, 2008) 243; J Scherpe ‘Towards a matrimonial property regime for England and Wales’ in R Probert and C Barton (eds), Fifty years in family law. Essays for Stephen Cretney (Cambridge, Intersentia, 2012) 133–46. 25 See Art 1 of Protocol 22 on the position of Denmark, annexed to the TFEU.

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IV.  Personal Scope of Application The Matrimonial Property Regimes Regulation does not contain any specific provisions concerning its personal scope of application. However, the Matrimonial Property Regimes Regulation will apply to the spouses whose circumstances lead to the application of any of the forums designated by the Regulation. It must be said that the Matrimonial Property Regimes Regulation does not foresee any reference to domestic international jurisdiction rules of the Member States taking part in the enhanced cooperation (see Article 15 of the Matrimonial Property Regimes Regulation), as opposed to Articles 6 and 7 of the Regulations Brussels Ia and Brussels IIa, respectively.

V.  Temporal Scope of Application The Matrimonial Property Regimes Regulation has applied since 29 January 2019, in the Member States that participate in enhanced cooperation, and has been in force from 28 July 2016 (Article 70). There are, however, some provisions whose application will occur at a different moment. On the one hand, from 29 July 2016, the Member States were requested to give to the Commission the list of any judicial authority and all other authorities and legal professionals with competence in matters of matrimonial property regimes (Article 65). From this date, the Member States have also been asked to present to the Commission the attestations and forms necessaries to apply the Matrimonial Property Regimes Regulation (Article 66). On the other hand, by 29 April, the Member States should have provided the Commission a short summary of their national legislation and procedures relating to matrimonial property regimes (Article 63), as well as the courts or authorities with competence to deal with applications for a declaration of enforceability and their potential subsequent appeals (Article 64).

10 Property Consequences of Registered Partnerships GUILLERMO PALAO MORENO

I. Introduction On 8 July 2016, both the Matrimonial Property Regimes Regulation and the Regulation on the Property Consequences of Registered Partnerships were published in the Official Journal of the European Union. Both European instruments aim at establishing new landmarks within the process of Europeanisation of Private International Law in the area of Family Law and were negotiated in parallel. As a result, they are intimately interrelated in many aspects, and the determination of their scope of application is a good example of this close interconnection. Despite the paramount interest of the topics which they cover, and their connection to the free movement of persons within the European Union, the adoption of both Regulations was not an easy task. Difficulties included the big differences present in the legal systems of the Member States in relation to the matters which they cover. As a result, the adoption of those instruments was not unanimous and some of the Member States (ie, Austria, Belgium, Bulgaria, the Czech Republic, Croatia, Finland, France, Germany, Greece, Italy, Luxembourg, Malta, the Netherlands, Portugal, Slovenia, Spain and Sweden, followed afterwards by Cyprus)1 showed their wish to establish an enhanced cooperation between themselves in order to apply both Regulations in their territories; thus, the territorial scope of both Regulations was affected from the very beginning of their negotiations.2 In this respect, this contribution will analyse the scope of application of the Regulation on the Property Consequences of Registered Partnerships.3 Accordingly, the following issues will be examined in this study: the substantive, the territorial, the personal, and the temporal scope of application of the Regulation on the Property Consequences of Registered Partnerships. 1 See Recital 11 of both Regulations. 2 Council Decision (EU) 2016/954 of 9 June 2016 authorising enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions on the property regimes of international couples, covering both matters of matrimonial property regimes and the property consequences of registered partnerships [2016] OJ L 159/16. 3 The scope of application of Matrimonial Property Regimes Regulation will be analysed by P Quinzá Redondo, ‘Matrimonial Property Regimes’ in ch 9 of this book.

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II.  Substantive Scope of Application Article 1 of the Regulation on the Property Consequences of Registered Partnerships determines the substantive scope of application of this European instrument – both from a positive and from a negative perspective – following the example of previous instruments regarding European Judicial Cooperation in civil matters. Nevertheless, both Articles 3 (Definitions) and 27 (Scope of the applicable law) must also be considered in this respect, as far as they deal with decisive questions which directly affect the determination of the delimitation of its substantive scope.4

A.  Issues Included From a positive perspective, Article 1(1) states that the Regulation on the Property Consequences of Registered Partnerships ‘shall apply to matters of the property consequences of registered partnerships’. In this respect, Article 3(1)(a) and (b) provides a definition of both ‘registered partnership’ and ‘the property consequences’ accompanying these partnerships. A registered partnership is ‘the regime governing the shared life of two people which is provided for in law, the registration of which is mandatory under that law and which fulfils the legal formalities required by that law for its creation’.5 And the property consequences accompanying them are ‘the set of rules concerning the property relationships of the partners, between themselves and in their relations with third parties, as a result of the legal relationship created by the registration of the partnership or its dissolution’. First, the importance of this independent and autonomous approach must be stressed, because there is no common approach to this issue, either from a European or from a comparative perspective of the Member States. In this respect, not only does European Union law – as well as the European Convention on Human Rights – lack a common definition of ‘registered partnership’, but also Member States follow different approaches for these partnerships.6 These divergent approaches also affect when the legislation of

4 See their commentaries elsewhere in this book. 5 In relation to this and a contrario, this Regulation does not cover patrimonial consequences derived from de facto and from non-registered partnerships, thus showing the existing differences between the legislations of the Member States and the lack of maturity of this issue from a European perspective. JM Fontanellas Morell, in C Parra (ed), Nuevos Reglamentos comunitarios y su impacto en el Derecho catalán (Barcelona, JM Bosch, 2012) 262 and 289. 6 In relation to this question, and the different models which member States follow, see K Boele-Woelki, C Mol and E van Gelder (eds), European Family Law in Action. Volume VI: Informal relationships (Cambridge, Intersentia, 2015); J Milles, ‘Unmarried cohabitation in a European perspective’ in J M Scherpe (ed), European Family Law Volume IV. Family Law in a European Perspective (Cheltenham, Elgar, 2016) 82. At least eight Member States currently provide for legislation for this kind of partnerships (Belgium, Denmark, Finland, France, Germany, Luxembourg, the Netherlands, Portugal, Spain (at a regional level), Sweden, and the United Kingdom, before Brexit). See Green Paper on conflict of laws in matters concerning matrimonial property regimes, including the question of jurisdiction and mutual recognition (COM/2006/0400 final) 10, at fn 11; C Gonzalez Beilfuss, Parejas de hecho y matrimonios del mismo sexo en la Unión Europea (Madrid, Marcial Pons, 2004) 27–58.

Property Consequences of Registered Partnerships  111 the Member States determines the patrimonial aspects of such partnerships.7 Therefore, the European legislator aims at, not only promoting clarity in its characterisation to facilitate the recognition of these relationships, but also at providing an independent and an autonomous concept of them in order to facilitate the consistent application of this instrument.8 However, and in accordance with Recital 17, this definition can solely be considered for the purpose of this Regulation, not affecting other fields of European or national law.9 Therefore, with this approach the differences present in national legislation when they define this kind of partnerships are respected. As a result, the national law of the Member States will continue to define what a registered partnership is; and, what is more important, nothing in the Regulation on the Property Consequences of Registered Partnerships should oblige those Member States whose law do not have the institution of registered partnership, to provide for it within their national law.10 This respectful view must be strongly supported, as the substantive differences, between some Member States regarding these type of relationships, are still profound. However, this approach does not tout court exclude every problematic situation which could take place in practice – and it could even be considered as an implicit conflict-of-law rule. For example, the delimitation of the borders of concepts like ‘registered partnership’ from others like the notion of ‘marriage’, differs from one Member States to the other.11 Also, when a country regulates registered partnerships it does not always accept that these will also cover same-sex partnerships.12 Therefore, the ECJ is bound to play an important role to provide an independent and autonomous delimitation of these concepts. Secondly, in accordance to Recital 18 of the Regulation on the Property Consequences of Registered Partnerships, only civil law aspects of the property consequences of registered partnerships could be considered when determining its substantive scope of application. As stated in this Recital, this view affects decisive questions like the daily management of the partner’s property and its liquidation, in particular because of the couple’s separation or after the death of one of the partners. 7 See Consortium Asser-UCL, Etude sur les regimes matrimoniaux des couples marries et sur le patrimoine des couples non marries dans le droit international prive et le droit interne des etats membres de l’Union Europeenne (at ec.europa.eu/civiljustice/publications/docs/regimes/report_regimes_030703_fr.pd) 202–04. 8 In this respect, the Note published by the Directorate General for Internal Policies of the European Parliament in 2010, ‘Matrimonial property regimes and patrimonial aspects of other forms of union: what problems and proposed solutions? (Proposal for Rome IV Regulation)’ 4, 5, 11 and 13 (at www.europarl.europa.eu/studies). 9 Therefore, some authors consider that, more than an autonomous definition, the Regulation has created a substantive rule, see M Vargas Gómez Urrutia, ‘El puzzle se complica. Efectos patrimoniales de las uniones registradas y el Reglamento (UE) 2016/1104. Problemas de calificación y coordinación entre los instrumentos europeos conexos’ in M Guzmán Zapater and C Esplugues Mota (eds) Persona y familia en el nuevo modelo español de Derecho Internacional privado (Valencia, Tirant lo Blanch, 2017) 322, offering interpreting criteria for the consistent application of solely this instrument, see P Peiteado Mariscal, ‘Competencia internacional por conexión en materia de régimen económico matrimonial y de efectos patrimoniales de uniones registradas. Relación entre los Reglamentos 2201/2003, 650/2012, 1102/2016 y 1104/2016’ (2017) 9 CDT 306. 10 Also S Marino, ‘Strengthening the European Civil Judicial Cooperation: the patrimonial effects of family relationships’ (2017) 9 CDT 269. 11 J Rodríguez Pineau, ‘Los efectos patrimoniales de las uniones registradas: algunas consideraciones sobre la propuesta de Reglamento del Consejo’ (2011) XI Anuario Español de Derecho Internacional privado 945–48. 12 D Martiny, ‘Die Kommissionsvorschläge für das internationale Ehegüterecht sowie für das internationale Güterecht eingetrageber Partnerschaften’ (2011) 5 IPRax 442.

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B.  Issues Excluded From a negative perspective, Articles 1(1) and (2) determine the subject matters which shall be excluded from the substantive scope of application of the Regulation on the Property Consequences of Registered Partnerships. On the one hand, paragraph 1 of Article 1 contains the traditional exclusion of revenue, customs, or administrative matters. On the other hand, paragraph 2 establishes that this instrument will not apply to certain issues even if they have a civil law character. This exclusion aims at providing clarity by excluding topics other than the property consequences of registered partnerships, such as:13 the legal capacity of partners;14 the existence, validity or recognition of a registered partnership;15 maintenance obligations;16 the succession to the estate of a deceased partner;17 social security, the entitlement to transfer or adjustment between partners, in the case of dissolution or annulment of the registered partnership, of rights to retirement or disability pension accrued during the registered partnership and which have not generated pension income during the registered partnership;18 the nature of rights in rem relating to a property;19 and any recording in a register of rights in immoveable or moveable property, including the legal requirements for such recording, and the effects of recording or failing to record such rights in a register.20

13 Recital 19. Art 1(3) of the Proposal for a Council Regulation of 2011 (COM (2011) 127 final) also make a reference to the following matters, which are not mentioned in the current wording of the regulation: the personal effects of registered partnerships, gifts between partners, and companies set up between registered partners. 14 Nevertheless, Recital 20 determines that ‘this exclusion should not cover the specific powers and rights of either or both partners with regard to property, either as between themselves or as regards third parties, as these powers and rights should fall under the scope of this Regulation’. 15 In this respect, and as it has been already stated, Recital 17 clarifies that the notion of registered partnership should be defined in the national laws of the Member States, offering just an autonomous concept of it for the sole purposes of this instrument. This also applies to preliminary questions such as the existence, validity, or recognition of a registered partnership (Recital 21). 16 This question will be governed by the Maintenance Regulation. 17 This question will be governed by the Succession Regulation. 18 Nevertheless, this exclusion must receive a strict interpretation, thus allowing this instrument to rule the significant question of classification of pension assets, the amounts that have already been paid to one partner during the registered partnership, and the possible compensation that would be granted in case of a pension with common assets (Recital 23). 19 In relation to this, Recital 24 determines that this will not affect the numerus clausus of rights in rem known in the national law of some Member States. As a result, a Member State should not be required to recognise a right in rem relating to property located in that Member State if the right in rem in question is not known in its law. However, Recital 25 recognises that this Regulation should provide for the adaptation of an unknown right in rem to the closest equivalent right under the law of that other Member State. Besides, this should not preclude other forms of adaptation in the context of the application of this Regulation (Recital 26). 20 In relation to this, Recital 27 clarifies that the registration authorities – apart from asking the person applying for registration to provide such additional information, or to present such additional documents, as required under the law of the Member State in which the register is kept – should accept documents presented for registration, drawn up in another Member State by the competent authorities the circulation of which is provided for by this Regulation, in order to avoid duplication of documents. Moreover, Recital 28 states that the effects of the recording of a right in a register should also be excluded from the scope of this Regulation, and should be governed by the law of the Member State in which the register is kept. See also Art 58, in relation to the acceptance of Authentic Instruments.

Property Consequences of Registered Partnerships  113

III.  Geographical Scope of Application As mentioned before, the Regulation on the Property Consequences of Registered Partnerships does not apply in all Member States of the European Union, because some Member States did not decide to establish an enhanced cooperation21 and to adopt both the Matrimonial Property Regimes Regulation and the Regulation on the Property Consequences of Registered Partnerships, following the example of the Rome  III Regulation. Therefore, the Matrimonial Property Regimes Regulation shall only be applicable for 18 Member States (ie, Austria, Belgium, Bulgaria, the Czech Republic, Croatia, Cyprus, Finland, France, Germany, Greece, Italy, Luxembourg, Malta, the Netherlands, Portugal, Slovenia, Spain and Sweden).22 Accordingly, the geographical scope of the Regulation on the Property Consequences of Registered Partnerships will be limited to the above-mentioned Member States. Among the reasons for the non-application of this instrument in other Member States, the following can be mentioned. First, it must be stressed that Denmark is excluded from those legal measures relating to judicial cooperation in civil matters produced by the European Union.23 Secondly, both the United Kingdom and Ireland decided not to opt-in to the Regulation on the Property Consequences of Registered Partnerships.24 Thirdly, six Member States, ie, Hungary, Latvia, Lithuania, Poland, Romania and Slovakia, decided not to participate in the enhanced cooperation and, as a result, took the position that the Regulation on the Property Consequences of Registered Partnerships will not apply to them. The motives for this decision, such as the non-recognition of same-sex unions as a registered partnership should be mentioned. Therefore, although Article 9 of the Regulation on the Property Consequences of Registered Partnerships established the possibility for courts of a Member State to decline jurisdiction for property disputes when such a registered partnership was not recognised there, those Member States did not find this approach suitable, and they took the position not to support this Regulation.

IV.  Personal Scope of Application It is important to underline that the Regulation on the Property Consequences of Registered Partnerships contains no provisions to determine its personal scope of application. In relation to this, it should be considered that its conflict-of-law rules enjoy 21 In this respect, Arts 20 TEU and 326 ff. TFEU. 22 Besides, according to some authors, Estonia is likely to become the 19th Member State participating in the enhance cooperation. JC Fernández Rozas, ‘Un hito más en la comunitarización del Derecho internacional privado: regímenes económico matrimoniales y efectos patrimoniales de las uniones registradas’ (2016) 40 La Ley Unión Europea 8. 23 See Art 1 of the Protocol 22 on the position of Denmark, annexed to the TFEU. Also Art 1(2) of the Proposal for a Council Regulation of 2011. 24 It has to be remembered that according to Art 4 of the Protocol 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security, and justice, annexed to the TFEU, the United Kingdom and Ireland may express at any time their wish to adopt the Regulation. Also Art 1(2) of the Proposal for a Council Regulation of 2011.

114  Guillermo Palao Moreno a universal application (as stated in Article 20). Nevertheless, the Regulation on the Property Consequences of Registered Partnerships will apply to partners whenever the different fora of the instrument could apply, as long as the Regulation on the Property Consequences of Registered Partnerships does not foresee the recourse to domestic international jurisdiction rules of the Member States which take part in the enhanced cooperation.25 In this respect, the approach followed by this new European instrument differs from the solution present at Articles 6 and 7 of Brussels Ia Regulation and Brussels IIa Regulation, respectively.

V.  Temporal Scope of Application From a temporal perspective, the Regulation on the Property Consequences of Registered Partnerships entered into force from 28 July 2016 according to Article 70(1), but it shall apply from 29 January 2019 in the Member States which participate in the enhanced cooperation (see paragraph (2) II). Nevertheless, the following timeline must be considered in relation to the following issues: Firstly, from 29 April 2018, Member States shall communicate to the Commission a short summary of their national legislation and procedures. This summary will relate to the property consequences of registered partnerships, including information on the type of authority which has competence in such matters (Article 63), the courts or authorities with competence to deal with applications for a declaration of enforceability, and the procedures to contest the decision given on appeal (Article 64). Secondly, from 29 July 2016, Member States shall communicate to the Commission the list of any judicial authority and all other authorities and legal professionals with competence in matters of the property consequences of registered partnerships (Article 65). Also, Member States shall communicate the attestations and forms necessary to apply the Regulation on the Property Consequences of Registered Partnerships (Article 66).

25 See Regulation on the Property Consequences of Registered Partnerships, Art 15 and its commentary in this book.

part iii General Issues

116

11 Finding a Habitual Residence THALIA KRUGER

I. Introduction Home is where the heart is. But where is the heart? This is not an easy matter at times of family crisis. Many of the EU Regulations in the field of family law use ‘habitual residence’ as a basis of jurisdiction or as a connecting factor to find the applicable law. In many cases, probably most, it is easy for the judge to establish someone’s habitual residence: the situation is clear and it can easily be deducted where people live. In these cases, the judges need not elaborate on how they go about finding the habitual residence. However, in a number of cases, the habitual residence is put in question, or sometimes heavily disputed between spouses, former spouses or other family members. For these cases it is necessary to find the habitual residence. This chapter deals with the question of how judges can and should do the finding. For purposes of the research I have relied heavily on the case law collected by the EUFam’s partners.1 Many of the original judgments are not accessible to me (due to their language), but the information in the database provided usable material.

II.  A Popular Concept Many EU Regulations use the concept of ‘habitual residence’ as a basis of jurisdiction and as a connecting factor for finding the applicable law.

A.  As Basis of Jurisdiction Brussels IIa uses ‘habitual residence’ frequently: in Recitals 12, 17 and 18 and in Article 2 in the definitions of ‘rights of access’ and ‘wrongful removal or retention’, Articles 3, 6 1 A previous paper on the topic of habitual residence relied on case law collected in the framework of another EU co-funded project, EUPILLAR: T Kruger, ‘Habitual Residence: The Factors that Courts Consider’, in P Beaumont, M Danov, K Trimmings and B Yüksel (eds), Cross-Border Litigation in Europe (Oxford, Hart Publishing, 2017) 741–54.

118  Thalia Kruger and 7 on jurisdiction in divorce and marriage annulment, Articles 8–13 on jurisdiction in matters of parental responsibility, Article 15 on transfer of jurisdiction, Article 18 on the examination of admissibility, Article 23 on grounds for non-recognition of judgments in parental responsibility matters, Article 29 on the jurisdiction of local courts, Article 33 on the appeal against a decision of enforceability, Article 42 on the enforcement of return decisions, Article 51 on security, bonds and deposits, Article 57 on the working method of central authorities, Article 61 on the relation with the 1996 Hague Convention on the Protection of Children and Article 66 on Member States with more than one legal system. The Maintenance Regulation uses the term in Recitals 15, 17 and 32, Article  3 containing the general rule on jurisdiction, Article 4 on choice of court, Article 8 on limits to proceedings in respect of states party to the 2007 Hague Child Support Convention, Article 11 on the examination of admissibility, Article 27 on the jurisdiction of local courts, Article 32 on the appeal against a declaration of enforceability and Article 45(d) on legal aid and costs. The Succession Regulation’s jurisdiction rules are in most cases based on habitual residence (Articles, 4, 6, 10, 13 and 16). The recent Matrimonial Property Regimes Regulation and Regulation on the Property Consequences of Registered Partnerships also make use of habitual residence as the basis for jurisdiction (Articles 5, 6 and 16 of the Matrimonial Property Regimes Regulation; Articles 6 and 16 of the Regulation on the Property Consequences of Registered Partnerships).

B.  As Connecting Factor for Applicable Law The 2007 Hague Maintenance Protocol, incorporated in the Maintenance Regulation,2 refers to habitual residence as a general rule for finding the applicable law (Article 3). Also for special categories of maintenance creditors and spouses habitual residence is relevant (Articles 4 and 5), as well as for special defences (Article 6). Habitual residence is one of the bases for the limited choice that parties are permitted to make (Article 8). Rome III Regulation employs habitual residence as its main connecting factor in Article 8 for the law applicable to divorce if the parties have not chosen the applicable law. Article 5, granting a limited choice to the spouses, refers in two of its four subparagraphs to the habitual residence of the spouses or one of them. The applicable law rules of the Succession Regulation also use habitual residence (Articles 21, 27 and 28). Lastly, the recent Matrimonial Property Regimes Regulation and Regulation on the Property Consequences of Registered Partnerships also rely heavily on habitual residence, both for the limited choice allowed to the parties (Articles 22, 23, 24 and 25 of both Regulations) and for the rule on applicable law in the absence of choice (Article 26 and 28 of both Regulations).



2 By

Art 15.

Finding a Habitual Residence  119 The use of the concept is not limited to the field of family law,3 but given the scope of the EUFam’s project, this chapter is restricted to family law instruments. As a result, this chapter will only focus on the habitual residence of natural persons, both adults and children. It will not discuss the habitual residence of companies or other legal persons.

III.  An Autonomous Concept The concepts used in the EU Regulations should be interpreted in an autonomous manner. Therefore, Member State courts may not rely solely on national understandings of the concept. Moreover, in the spirit of mutual trust, national courts in the EU cannot secondguess the finding of a habitual residence made by a national court in another EU Member State.4

A.  Case Law of the CJEU on the Habitual Residence of Children The Court of Justice of the EU has already issued several judgments on the habitual residence of children in the field of International Family Law.5 In these cases the Court set out factors that national courts should consider when determining the habitual residence of a child. In the first case, A, the Court set out a number of factors that courts should use to establish the habitual residence of a child. These are the duration, regularity, conditions and reasons for the stay on the territory of a Member State and the family’s move to that State, the child’s nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that State.

The Court kept these factors in the next cases, but gave further explanations. The Court reiterated that the fact that a habitual residence is in accordance with the law is only one of the factors that a national court should consider.6 In this case 3 Brussels Ia uses ‘habitual residence’ in Art 15 on insurance, Art 19 on consumers, and Art 72 on the continued use of older conventions on the enforcement of judgments from third states. Rome I makes use of ‘habitual residence’ as its main connecting factor: see Recitals 19, 21, 25, 28, 39, Art 4 on the applicable law in the absence of choice, Art 5 on carriage contracts, Art 6 on consumer contracts, Art 7 on insurance contracts, Art 10 on material validity, Art 11 on formal validity and Art 19 containing a definition of habitual residence. In Rome II ‘habitual residence’ is not the main connecting factor as in Rome I, but has an important subsidiary place. It is employed in Recitals 18, 20, 33, Art 4 containing the general rule, Art 5 on product liability, Art 10 on unjust enrichment, Art 11 on negotiorum gestio, Art 12 on culpa in contrahendo and Art 23 containing a definition of habitual residence. 4 Ústavní soud, 8 September 2015, II.ÚS 3742/14, CZC20150908. 5 Case C-523/07 A [2009] ECR I-02805, ECLI:EU:C:2009:225; Case C-497/10 Barbara Mercredi v Richard Chaffe [2010] ECR I-14309, ECLI:EU:C:2010:829; Case C-376/14 PPU C v M [2014] ECLI:EU:C:2014:2268; Case C-111/17 PPU OL v PQ [2017] ECLI:EU:C:2017:436; Case C-85/18 PPU CV v DU [2018] ECLI:EU:C:2018:220; Case C-512/17 HR [2018] ECLI:EU:C:2018:513. 6 Case C-376/14 PPU C v M (n 5). For criticism of this case, see P Beaumont and J Holiday, ‘Recent Developments on the Meaning of “Habitual Residence” in Alleged Child Abduction Cases’ (2015) Centre of Private International Law, University of Aberdeen Working Paper No 2015/3, at www.abdn.ac.uk/law/documents/ Recent_Developments_on_the_Meaning_of_Habitual_Residence_in_Alleged_Child_Abduction_Cases_.pdf.

120  Thalia Kruger the mother removed the child from France to Ireland in accordance with a judgment by a French court. However, at the time she moved, she was aware that the judgment was being appealed and that her permission was therefore precarious. The appeal court revoked the permission to move to Ireland and the presence of the child there thus became against the law. This fact in itself is relevant, but had to be considered in combination with the other factors. It is interesting to note that the Irish Supreme Court, after receiving this response from the Court of Justice, found that the child was habitually resident in Ireland.7 The Court took into account the fact that the appeal was pending in France at the time of the move, but also other factors, such as the child’s ties with her parents, her relatives in Ireland and her language capabilities. For infants the factors remain relevant, the CJEU said in Mercredi.8 However, the family origins and the family and social connections of the person on whom the infant is dependent have to be considered.9 The CJEU later nuanced this finding by explaining that the origins of one of the parents may not obscure objective circumstances that indicate where the child is permanently staying.10 According to the CJEU the family environment of the other parent is also relevant where the child lives in the same city and has weekly contact with that other parent.11 The fact that the child often travels to the state of origin of the parent with whom she lives, has the nationality of that state and speaks that language is not decisive.12 A mere intention is not sufficient if the infant has never been present in the particular country. The CJEU had the opportunity to give this explanation in a case in which the mother gave birth in Greece, with the agreement of the father.13 The family home was in Italy, and the intention was that the mother and child would return there. However, the mother never returned. This child could not be habitually resident in Italy on the basis of the mere intention of the parents if she has never been to Italy.

B.  The Habitual Residence of Adults There is no case law of the CJEU yet on the autonomous interpretation of ‘habitual residence’ for adults in the sphere of International Family Law. This solicits the question of which inspiration is the most appropriate: the case law on the habitual residence of children since these cases are squarely in the ambit of family law, or the case law on habitual residence in social security and staff cases since these cases focus on adults and the best way to determine the centre of their lives. In my opinion, national courts could draw inspiration from both these sources. First, because all the case law seeks the centre of an individual’s interests. This is in line

7 G v G [2015] IESC 12. 8 Case C-497/10 Mercredi v Chaffe (n 5). 9 Case C-497/10 Mercredi v Chaffe (n 5) para 56 and in the operative part of the judgment (para 72). 10 Case C-512/17 HR (n 5) para 56. 11 ibid para 49. 12 ibid para 51–52 and 60. 13 Case C-111/17 PPU OL v PQ (n 5). See, in the same vein, Cour d’appel de Paris 3 May 2007 No 06/10109, FRS20070503.

Finding a Habitual Residence  121 with the meaning of habitual residence in Brussels IIa.14 Second, because it would make sense to simplify and converge approaches across legal fields rather than to needlessly complicate them. Individuals do not compartmentalise their lives into sections such as tax, social security and family and then have several centres of their interests. Third, because the case law with respect to children is certainly relevant insofar as it deals with families but is in itself insufficient. The important difference between moving children and moving adults is that adults can and do decide for themselves, while children are dependent on an adult’s (usually a parent’s) intentions. Advocate General Kokott wrote in her Opinion for case A that it is not appropriate to transpose case law from other fields of law when assessing the habitual residence of a child.15 In her view the family law context is different. While this is true for children, the position of adults is different. Her statement should not be extended beyond the context in which it was made.

IV.  A Factual Concept Even from before the EU had competence in Private International Law matters, the Hague Conference on Private International Law has often used ‘habitual residence’ as a connecting factor in its conventions. The Conference deliberately chose a concept that is not burdened by legal technicalities but dependent upon fact.16 The EU legislator has followed this approach in its Regulations in the field of Private International Law.17 In a certain sense, it is ironic to write a chapter for a legal volume on the concept of habitual residence: the point of the concept is that it should not become legalistic. The Hague Conventions and the EU Regulations have deliberately refrained from defining the term ‘habitual residence’. It should indeed be left to national judges to apply the facts and find where the people in front of them habitually reside. The Conventions and Regulations generally do not even contain guidelines or clues for the finding of a habitual residence. The Succession Regulation poses an exception: its Recitals 23 and 24 do give such clues. Recital 23 states that: the authority dealing with the succession should make an overall assessment of the circumstances of the life of the deceased during the years preceding his death and at the time of his death, taking account of all relevant factual elements, in particular the duration and regularity of the deceased’s presence in the State concerned and the conditions and reasons for that presence. The habitual residence thus determined should reveal a close and stable connection with the State concerned taking into account the specific aims of this Regulation.

14 See Explanatory Report on the Convention, drawn up on the basis of Article K.3 of the Treaty on European Union, on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters (approved by the Council on 28 May 1998) prepared by Dr Alegría Borrás Professor of Private International Law, University of Barcelona [1998] OJ C 221/27 (Borrás Report). 15 Case C-523/07 A (n 5) stated at paras 34–36. 16 L Collins, Dicey, Morris and Collins on The Conflict of Laws (London, Sweet & Maxwell, 2006) 168; SI Winter, ‘Home is where the Heart is: Determining “Habitual Residence” under the Hague Convention on the Civil Aspects of International Child Abduction’ (2010) 33 WUJL&P 351 at 355. 17 Collins (n 16) 168; A Briggs, Private International Law in English Courts (Oxford, Oxford University Press, 2014) 76.

122  Thalia Kruger The legislator then goes further to justify its meddlesomeness by stating in Recital 24 that: determining the deceased’s habitual residence may prove complex. Such a case may arise, in particular, where the deceased for professional or economic reasons had gone to live abroad to work there, sometimes for a long time, but had maintained a close and stable connection with his State of origin. In such a case, the deceased could, depending on the circumstances of the case, be considered still to have his habitual residence in his State of origin in which the centre of interests of his family and his social life was located. Other complex cases may arise where the deceased lived in several States alternately or travelled from one State to another without settling permanently in any of them. If the deceased was a national of one of those States or had all his main assets in one of those States, his nationality or the location of those assets could be a special factor in the overall assessment of all the factual circumstances.

Also the CJEU has explicitly stated that habitual residence is a factual concept18 and that determining the habitual residence ‘requires a global analysis of the particular circumstances of each individual case’.19 Therefore, when discussing habitual residence, lawyers and academics should take care not to impose a definition, but only to enlist the factors that are or are not considered relevant by the CJEU and by national courts and to discuss factors that should or should not be relevant. This point of view has received some support from the French Cour de Cassation.20 The wife appealed a decision by the court of appeal of Montpellier that rejected jurisdiction based on the fact that her habitual residence was not in France but in Belgium, like that of her husband. The Cour de Cassation held that the court of appeal could in a sovereign manner weigh up the elements of proof to establish the habitual residence. The Cour de Cassation declined to interfere with the appeal court’s appreciation and refused the appeal.

V.  A Concept Filled in by Factors National courts considered a variety of factual circumstances in order to determine the habitual residence. The ones that feature most prominently in the cases collected in the EUFams database are those that the CJEU enlisted.21 The CJEU case law also served as inspiration when establishing the habitual residence of adults.22 18 Case C-85/18 PPU CV v DU (n 5) para 49. 19 Case C-512/17 HR (n 5) para 54. 20 Cass, 2 December 2015 No 14-20848, FRT20151202. 21 Cass, 14 July 2006 No 16092, ITT20060714 (in this case the intention of the mother played an important role); Monomeles Protodikeio Kavalas, 11 January 2009 No 24/2009, ELF20090111; Nejvyšší soud, 27 September 2011, 30 Cdo 2244/2011, CZT20110927 (according to the commentary in the EUFam’s database, this is an important case, often referred to in other Czech cases); OLG Stuttgart, 12 April 2012, 17 UF 22/12, DES20120412; Окръжен съд – Ловеч, 17 July 2013, BGS20130717; KS v Českých Budějovicích, 11 October 2013, 5 Co 2019/2013, CZS20131011; OS Dunajská Streda, 4 March 2014, 9P/88/2013, SKF20140304; Cass, 4 March 2015 No 1419015, FRT20150304; OLG Koblenz, 18 March 2015, 13 UF 825/14, DES20150318; KS v Brně, 2 April 2015, 20 Co 215/2015, CZS20150402; Cass, 7 September 2016 No 17676, ITT20160907; Cass, 10 February 2017 No 3555, ITT20170210. 22 eg Cass, 17 February 2010 No 3680, ITT20100217.

Finding a Habitual Residence  123 For adults, courts have also considered employment,23 bank accounts,24 loans,25 owning immovable property,26 their driver’s licence,27 where their children attend school,28 where the children live,29 the receipt of important mail such as bank statements,30 the receipt of large amounts of mail,31 where they and their children received medical care,32 personal and administrative relations,33 where they paid social assistance contributions,34 owning a company,35 looking for a job,36 and even the place of the spouses’ wedding.37 The focus is the centre of the adult’s interests, even if they reside temporarily elsewhere.38 The fact that an adult maintains a close relationship with family members in his or her country of origin is not in itself considered sufficient to establish a habitual residence.39 Similarly, visiting children in a particular country is not sufficient to be considered habitually resident there,40 not even when this is combined with the nationality of that country.41 Neither is a place where the family resides for three months every summer a habitual residence.42 Paying taxes in a particular country does not necessarily mean that the adult has established the permanent centre of his or her interests there.43 A registered residence does not necessarily amount to a habitual residence in that state.44 A Spanish court even considered working in a particular country as insufficient where the person travelled a lot.45 In a succession dispute, a Croatian court discarded the place where a person had worked for 25 years, as he had returned to his native country when he retired.46

23 Cass, 17 February 2010 No 3680, ITT20100217; Cass, 25 June 2010 No 15328, ITT20100625; Cass, 4 December 2012 No 21750, ITT20121204; Cass, 24 February 2016 No 15-10288, FRT20160224. 24 Općinski građanski sud u Zagrebu, 6 June 2016, O-1895/16, CRF20160606. A bank account in another country was not found sufficient to alter the habitual residence: Općinski sud u Bjelovaru, SS u Garešnici, 27 May 2016, O-3199/15-9, CRF20160527. 25 Cass, 24 February 2016 No 15-10288, FRT20160224. 26 ibid and Trib Milano, 16 April 2014, ITF20140416; Općinski građanski sud u Zagrebu, 6 June 2016, O-1895/16, CRF20160606. 27 Trib Milano, 16 April 2014, ITF20140416. 28 Cass, 24 February 2016 No 15-10288, FRT20160224; Trib Milano, 16 April 2014, ITF20140416; Cass, 4 December 2012 No 21750, ITT20121204. 29 Cass, 17 February 2010 No 3680, ITT20100217. 30 App Catania, 2 October 2015 No 1476, ITS20151002. 31 Cass, 25 June 2010 No 15328, ITT20100625. 32 Cass, 25 June 2010 No 15328, ITT20100625. 33 Audiencia Provincial Valladolid, 12 March 2013 No 95/2013, ESS20130312. 34 Trib Milano, 16 April 2014, ITF20140416. 35 Općinski sud u Splitu, 8 January 2016, Pob – 384/14, CRF20160108. 36 Općinski sud u Splitu, 8 January 2016, Pob – 384/14, CRF20160108. 37 Trib Roma, 25 October 2013, ITF20131025b. 38 Cour d’appel d’Aix-en-Provence, 5 December No 07/11782, FRS20071005. 39 Tessaloniki Court of Appeal, 8 June 2015 Νο 2750/2006, ELF20060615; Polymeles Protodikeio Athinon, 1 April 2013, No 1689/2005, EL20130401. 40 Županijski sud u Splitu, 20 July 2015, Gž Ob-58/2015, CRS20150720. 41 Efeteio Athinon, 2 June 2011 No 2712/2011, ELS20110602. 42 Efeteio Thessalonikis, 16 June 2014 No 1377/2014, ELS20140616. 43 Cass, 8 July 2015 No 14-15618, FRT20150708a; Cour d’appel de Colmar, 1 April 2014 No 13/01316, FRS20140401. 44 Županijski sud u Splitu, Gž Ob-58/2015, 20 July 2015, CRS20150720. 45 Audiencia Provincial Islas Baleares, 17 March 2015 No 98/2015, ESS20150317. 46 Općinski građanski sud u Zagrebu, 6 June 2016, O-1895/16, CRF20160606.

124  Thalia Kruger A Greek court also considered negative factors, such as the absence of any bills and the absence of a car registered there, to indicate that the person lacked a habitual residence in Greece.47 For children, besides the factors of the CJEU, courts have also considered other factual circumstances such as where the child was hospitalised,48 the location of the child’s doctor,49 health insurance,50 the place where a parent works,51 the child’s sports,52 the child’s own relationship with his or her peers.53 The Bundesgerichthof emphasised that the factors to be taken into account for children must be considered independent from their parents.54 However, the Court added that the habitual residence of a child generally corresponds with that of the caretaking parent.55 A Slovak court made a connection between the habitual residence and the child’s best interests.56 In this case, the child had been living in the Czech Republic only for a short time, but various factors pointed to his integration and planned integration there. Courts have also pointed out the factors that are insufficient in themselves to establish the habitual residence of a child: the registration of the child in a particular country (ie formal residence),57 the child attending pre-school,58 the place where child benefits are paid,59 a provisional measure placing the child with one of the parents.60 The factors should remain within their factual context. They should remain in equilibrium. Thus, no single factor should be seen as decisive. Judges should resist the temptation to devise set criteria when considering the factors. An example of such set criteria is attaching a specific time limit to the criteria of ‘duration’. It emerges from the case law collected in the EUFam’s project that German courts consider that a person attains a habitual residence if he or she has been in the country for six months or more. Some courts regard a six-month period as sufficient and fail to take into account the other factors.61 An interesting case in this regard is a judgment of the Saarländisches Oberlandesgericht:62 the court found that the child had not established a habitual residence in Germany although he was socially integrated to some extent, because he lived there only for four months while six months was needed to establish habitual residence. In this case, the court would probably have come to the same conclusion if it had applied the CJEU’s factors, because the child’s stay in Germany was, by the agreement between the parents, only meant to be temporary. 47 Efeteio Athinon, 2 June 2011 No 2712/2011, ELS20110602. 48 App Catania, 2 October 2015 No 1476, ITS20151002. 49 Nejvyšší soud, 27 September 2011, 30 Cdo 2244/2011, CZT20110927. 50 OS Bratislava IV, 3 June 2016, 13P/74/2016, SKF20160603. 51 Nejvyšší soud, 24 April 2013, 30 Cdo 715/2013, CZT20130424. 52 Trib Milano, 16 April 2014, ITF20140416. 53 Trib Genoa, 22 December 2014, ITF20141222. 54 BHG 17 February 2010, XII ZB 68/09, DET20100217. 55 ibid. 56 OS Bratislava IV, 3 June 2016, 13P/74/2016, SKF20160603. 57 Najvyšší súd, 12 March 2009, 3 Cdo 326/2008, SKT20090312; Općinski građanski sud u Zagrebu16 July 2014, P2-142/13-15, CRF20140716; Županijski sud u Zagrebu, 2 December 2014, Gž2-501/14-2, CRS20141202; OLG Hamm, 2 February 2011, 8 UF 98/10, DES20110202. 58 OLG Hamm, 2 February 2011, 8 UF 98/10, DES20110202. 59 OLG Koblenz, 18 March 2015, 13 UF 825/14, DES20150318. 60 Cass civ, s.u., 2 August 2011 No 16864, ITT20110802. 61 OLG Karlsruhe, 26 August 2015, 18 UF 112/15, DES20150826. 62 Saarländisches Oberlandesgericht, 26 August 2015 No 9 UF 59/15, DES20150826.

Finding a Habitual Residence  125 Other courts regard this period almost akin to a presumption, but consider other factors as well.63 It seems that the German courts follow an old judgment from 1982 in which the Bundesgerichtshof found that after six months it could reasonably be concluded that a person has a new habitual residence.64 Some courts have not found the correct balance between this old Bundesgerichtshof case law and the more recent case law by the CJEU. When applying the EU Regulations, they should pay more attention to the guidance given by the CJEU. When considering ‘habitual residence’ in the application of domestic law, German courts can (and should) of course follow the case law of the Bundesgerichtshof. There is case law that gets the balance right. The Oberlandesgericht Stuttgart65 considered the fact that the mother and child moved to Spain more than six months before. However, it did not see this fact as decisive, but also took into account the child’s school and social integration. The Court found that the six-month period is relevant, but that finding a habitual residence requires a case-by-case analysis. In the same vein, the French Cour de Cassation quashed a decision by the court of appeal of Limoges66 on the basis that that court took account only of the time of the stay in a particular country to determine the habitual residence of the child.67 The Cour de Cassation explained that the habitual residence of the child must be determined according to the entire set of factual circumstances, including the common intention of the parents and the efforts made to integrate into the new environment. In this sense, the length that the child has stayed somewhere is one of the factors that can indicate social and family integration.68

VI.  A Time-Sensitive Concept Regarding children, the Brussels IIa Regulation contains an explicit mention of the relevant point in time: when the court is seised.69 Strangely, the Regulation does not mention the relevant time to consider the habitual residence for cases in matrimonial matters (divorce, legal separation and marriage annulment). The Borrás Report refers to the ‘time of application’.70 This is in line with the time element for children. It is also aligned with the Rome III Regulation,71 the Matrimonial Property Regimes Regulation72 and the Regulation on the Property Consequences of Registered Partnerships.73 63 Kammergericht Berlin, 2 March 2015, 3 UF 156/14, DES20150302; OLG Karlsruhe, 5 June 2015, 18 UF 265/14, DES20150605. 64 BGH, 29 October 1982. 65 OLG Stuttgart, 30 March 2012, 17 UF 338/11, DES20120330. 66 Cour d’appel de Limoges, 10 February 2014 No 13/01124, FRS20140210. 67 Cass, 4 March 5015 No 1419015, FRT20150304. 68 See also Tribunale per i minorenni dell’Emilia Romagna in Bologna, 8 November 2016, ITF20161108. 69 Art 8 Brussels IIa. See also Case C-512/17 HR (n 5) para 39. 70 See Borrás Report para 31. This report was written for the Brussels II Convention on which Brussels II Regulation (the predecessor of Brussels IIa) was based. 71 Art 8 Rome III refers to the ‘time the court is seised’. 72 Art 6(a) Matrimonial Property Regimes Regulation for jurisdiction. For applicable law, the Regulation refers to the first common habitual residence of the spouses: Art 26(1)(a). 73 Art 6(a) Regulation Property Consequences of Registered Partnerships for jurisdiction.

126  Thalia Kruger The Maintenance Regulation, like Brussels IIa for adults, is silent on the relevant moment of habitual residence. The Succession Regulation also contains a reference to the relevant point in time, but here it is the time of the death and not the time of the application.74 The habitual residence at the time of death can be different from the habitual residence that a person had for a long period during his or her life, including the place where he or she worked.75 The 1996 Hague Convention on the Protection of Children and 2007 Hague Maintenance Protocol operate differently: they provide that jurisdiction shifts when the habitual residence changes.76 Under the 1980 Hague Child Abduction Convention the relevant moment of the habitual residence is that of the averred wrongful removal or retention.77 That is either the moment when the abducting parent takes the child to another country or when he or she refuses to allow the child to return after an agreed visit.78 The EUFam’s database reveals that courts have approached divergently the question of when the habitual residence must be in their state. In a maintenance claim the Oberlandesgericht Frankfurt am Main found the time of seising the court the relevant moment even if the habitual residence shifted during the course of the proceedings.79 Regarding children the courts have not always kept the focus on the moment of seising. A Slovak court found that the habitual residence of the child shifted from Slovakia to the Czech Republic after the institution of the proceedings, which resulted in neither the Slovak nor the Czech court having jurisdiction.80 An Italian court considered the habitual residence of the child at the moment of the decision instead of the moment of the institution of the proceedings.81 Another Italian court seemed to consider the moment of the proceedings instead of the time of institution of the proceedings, where the child moved in the meantime.82 However, the child had been living in Ecuador for some time, so the outcome would probably have been the same. The Bundesgerichtshof found that for purposes of jurisdiction it was sufficient that the child became habitually resident in Germany at some point during the procedure, as long as he or she was so habitually resident by the end of the court proceedings.83 It seems that the problem in this case was that it was hard to determine the child’s habitual residence at the timing of the institution of the proceedings. Of course there are courts that consider the institution of the proceedings as the relevant moment.84 The Court of appeal of Versailles found that the habitual residence 74 Art 4 Succession Regulation for jurisdiction; Art 21 for applicable law. 75 Općinski građanski sud u Zagrebu, 6 June 2016, O-1895/16, CRF20160606. 76 Art 5(2) 1996 Hague Convention on the Protection of Children; Art 3(2) 2007 Hague Maintenance Protocol. 77 Art 4 1980 Hague Child Abduction Convention. 78 For an application see Trib per i minorenni di Milano, 30 April 2010, ITF20100430. 79 OLG Frankfurt am Main, 12 April 2012, 5 UF 66/11, DES20120412. 80 OS Veľký Krtíš, 21 November 2014, 7P/148/2014, SKF20141121. 81 Trib Genoa, 22 December 2014, ITF20141222. 82 Trib Benevento, 12 March 2015, ITF20150312. 83 BGH, 17 February 2010, XII ZB 68/09BGH, DET20100217. 84 Cour d’appel de Lyon, 26 February 2009 No 09/03088, FRS20090926; Thessaloniki Single-Member Court of First Instance, 25 July 2011 No 22101/2011, ELF20110725; Окръжен съд – Търговище, 29 July 2015, BGS20150729; Thessaloniki Single-Member Court of First Instance, 23 September 2015 No 13063/2015, ELF20150923.

Finding a Habitual Residence  127 of the child was in France, taking account of the situation at the moment the proceedings were started in France, despite the fact that the child in fact lived in Switzerland at the moment of the appeal judgment.85 The Corte di Cassazione ruled in the same manner.86 This Court also ruled, in a different case, that it is not required that the habitual residence had been in the new place for a long time.87 The French Cour de Cassation also confirmed the moment of instituting the proceedings at first instance as the relevant moment.88 This approach seems to be a correct application of the principle in the Regulation. A particular problem arises when the child moves from an EU Member State to a state outside the EU that is party to the 1996 Hague Convention on the Protection of Children. While Brussels IIa provides that jurisdiction stays with the court of the habitual residence at the time of the institution of the proceedings, the 1996 Hague Convention on the Protection of Children provides that jurisdiction shifts with the habitual residence, as explained above. The Kammergericht Berlin was faced with such a situation. After the institution of the proceedings the child’s habitual residence moved from Germany to Russia.89 Russia is party to the 1996 Hague Convention on the Protection of Children.90 The court referred to the disconnection rule for these two legal instruments.91 It found that if the child is not habitually resident in the EU, the Convention takes precedence. Therefore, the jurisdiction in this case lay with the Russian and not the German courts. The Kammergericht did a good job of respecting its international obligations. Brussels IIa’s current wording on the interaction between Brussels IIa and the 1996 Hague Convention on the Protection of Children does not provide for a correct solution. Article 61 simply states if the child is habitually residence in the EU, Brussels IIa prevails over the Convention. The Brussels IIter Proposal solves this problem by bringing the Regulation in line with the Convention’s rule. The Regulation will, if the Proposal is accepted, also attribute jurisdiction to the place of the new habitual residence from the moment of the move.92

VII.  A Concept Linked to but not Limited to Intention The CJEU made clear in the above-mentioned case of OL v PQ that a child (an infant in this case) cannot acquire a habitual residence at a place where he or she has never been physically present. The mere intention of the parents is insufficient to establish a habitual residence. However, their intentions do play a role in the assessment.93



85 Cour

d’appel de Versailles, 6 May 2014 No 13/03514, FRS20140506. 13 February 2012 No 1984, ITT20120213. 87 Cass, 4 December 2012 No 21750, ITT20121204. 88 Cass, 25 March 2015 No 13-25225, FRT20150325a. 89 Kammergericht Berlin, 2 March 2015, 3 UF 156/14, DES20150302. 90 See the status table for this Convention at www.hcch.net/en/instruments/conventions/status-table/?cid=70. 91 Art 61(a) Brussels IIa. 92 Brussels IIter Proposal, Art 7. 93 Case C-512/17 HR (n 5) para 46 (referring alo to the CJEU’s previous case law) and paras 61–65. 86 Cass,

128  Thalia Kruger The French Cour de Cassation came to an opposite conclusion in a case that was decided prior to the OL v PQ judgment. The Cour de Cassation placed more emphasis on the common intention of the parents about where the child would be living.94 The facts were similar to those of OL v PQ. The parents had agreed that the mother would travel from Michigan, where the family home was, to see her father in France. She took the couple’s daughter with her. She was pregnant and gave birth to the second child in France. When she refused to return to the United States, the father instituted return proceedings. At issue was whether the younger child was habitually resident in the United States. The child had never been to the United States. However, the French court considered the parents’ intention and found that the child was habitually resident in Michigan. The United Kingdom Supreme Court was also faced with this question.95 It was reluctant to find that an infant could have his habitual residence in a country where he had never been.96 However, making such finding was not necessary, as the English courts would also have had jurisdiction if the child were not habitually resident in England.97 For the assessment of the habitual residence of older children (ie not infants) the intention of the parents also plays a role. This is in line with the case law of the CJEU. An Italian court for example found that a parent who moves to a country for a short period or for holidays could not have expected that the child’s stay in this country would be definitive.98 For an unaccompanied minor refugee the Oberlandesgericht of Karlsruhe relied more heavily on intention than might be done in other cases.99 The Court looked at the centre of the child’s life, social integration, the time spent in Germany with a foster family, and also the fact that a change of habitual residence was not foreseeable, thus looking at where the child will stay in the immediate future. In my view, the logic of this conclusion can also be extended to adults: they cannot acquire a habitual residence in a country without actually being there. On the other hand, the intention element does play a role in the establishment of habitual residence. This was crisply demonstrated by an Italian case, in which both the court of first instance and the court of appeal refused jurisdiction.100 The wife moved from Italy to Germany, where her husband was residing, after the wedding. However, less than a year later the marriage broke up and she returned to Italy. She instituted divorce proceedings in Italy arguing that she had never acquired a habitual residence in Germany, in light of the short duration of the marriage. However, the court of appeal considered relevant the intention of the spouses to establish their home in Germany and held that her habitual

94 Cass (première chambre civile), 26 October 2011. See also A Fiorini, ‘The Habitual Residence and the Newborn A French Perspective’ (2012) 61 ICLQ 530. 95 Fiorini (n 94) 530, 533–34. 96 In the matter of A (Children) [2013] UKSC 60. 97 On the basis of the residual jurisdiction, for which Art 14 Brussels IIa refers to national law, the English courts would have jurisdiction. See In the matter of A (Children) [2013] UKSC 60 at para 59–76. See also R Schuz, ‘Case Commentary. Habitual Residence of the Child Revisited: A Trilogy of Cases in the UK Supreme Court’ (2014) 26 Child&FamLQ 342 at 350–53. 98 App Catania, 3 June 2015, ITS20150603; App Catania, 2 October 2015, ITS20151002. 99 OLG Karlsruhe, 5 March 2012, 18 UF 274/11, DES20120305. 100 App Catania, 14 December 2016, ITS20161214.

Finding a Habitual Residence  129 residence was in Germany. A French court of appeal similarly found that the intention of the parties is more important than the length in time of the residence.101

VIII.  A Concept Tolerating an Illegal Situation As habitual residence is a factual concept, the fact whether the stay is legal or illegal is not decisive. This emerges from the case law of the CJEU, where the ‘regularity’ of the stay is only one of the factors to be considered.102 As set out above, even the fact that the child stays in a country in violation of a court order is only one relevant fact when assessing the habitual residence. Regarding adults, the result is that persons residing illegally (for purposes of migration law) can have a habitual residence. The Oberlandesgericht Koblenz found that a person seeking asylum could establish a habitual residence after years of living there and integrating into a social network.103 (It is not clear to me why the court here seemed to use a stricter test, requiring ‘years’.) In the case at hand the court did not accept that the couple, who had been living in Germany for a year, was habitually resident there. They were asylum-seekers from Kosovo, whose application had been rejected. The wife had received an order to leave Germany and was indeed planning to do so. The husband had not yet received such order; he had a relationship with a German woman and was planning to stay in Germany. The court commented that marriage did not seem to imply the usual level of commitment for this man, as his previous marriage had broken up after barely one month. It is strange that the court refused jurisdiction over the divorce in the circumstances, in light of the residence of one year. The court seems to place more attention on the future than on the past, while divorce rather relates to the past. Moreover, refusing jurisdiction would cause hardship for these parties (on the level of later crossborder service of proceedings). Concerning children, it is important to draw a clear distinction between the factual concept of habitual residence and the law that surrounds it. Article 10 of Brussels IIa can cause confusion: this Article provides for the retention of the jurisdiction of the court of the former habitual residence of the child in case of a wrongful removal or retention in another country. The provision does not aim to define or in any way determine the habitual residence of an abducted child. It merely creates an exception to the general rule (in Article 8) that the habitual residence creates jurisdiction. The CJEU has recently confirmed this state of the law.104 The Court explained that Article 10 bars the exercise of jurisdiction even if the child has acquired a habitual residence in the country to which he or she has been wrongfully removed.105 Article 10 is sometimes read to mean that a wrongful removal or retention cannot alter a child’s habitual residence. Such interpretation amounts to cutting a legal corner.



101 Cour

d’appel d’Aix-en-Provence, 2 Septembre 2009 No 08/13090, FRS20090902. C-523/07 A (n 5); Case C-497/10 Mercredi v Chaffe (n 5). 103 OLG Koblenz, 13 WF 1/16, 6 January 2016, DES20160106. 104 Case C-85/18 PPU CV v DU (n 5). 105 ibid paras 50 and 51. 102 Case

130  Thalia Kruger Courts should not, it is submitted, succumb to this shortcut, which causes them to lose accuracy in their legal reasoning. The result is elevating Article 10 to a rule on habitual residence rather than a rule distributing jurisdiction. The EUFam’s database contains a number of cases where courts did use the shortcut.106 The French Cour de Cassation also seemed to rule that a child could not obtain any habitual residence in France, even if she went to school there, as the mother had removed her from Algeria illicitly.107 It is not entirely clear here whether the short duration of the child’s habitual residence also played a role here. The mother’s appeal was based on the alleged incorrect application of Article 8. However, it is submitted that the Cour de Cassation could have explained Article 10 and its relation to Article 8 in this situation more elaborately. In fact, the appeal court judgment was correct and the appeal to the Cour de Cassation rightly failed because Article 8 was not misapplied, but simply trumped by Article 10. Other courts got it right, finding a habitual residence due to the fact that the child is settled and had been residing in the new country for more than a year108 or using Article 10 to retain jurisdiction, independent of an assessment of the children’s habitual residence.109

IX.  A Concept Referring to Only One Place Some debate has arisen about the possibility of having a dual habitual residence. Some national courts have found that a child can simultaneously have more than one habitual residence. These were situations where the children had significant contacts with more than one country. For instance, a Czech court found that the children were simultaneously habitually resident in the Czech Republic and in Switzerland.110 The court made a careful assessment of the relevant factors such as proximity, social and family integration, duration of the stay and the languages that the children spoke. Similarly, the Slovakian Supreme Court found children to have a degree of integration in two states.111 The children went to school in both states – half the time in the one state, half the time in the other (hopefully this is exceptional). The children moreover were integrated socially and family-wise in both states (probably a less exceptional feature of this case). This is not the only case in the database in which the Slovakian court found that children had a dual habitual residence.112 In two other cases (after the Supreme Court decision), Slovakian courts refrained from finding that an adult simultaneously had two habitual residences.113 It seems that 106 Županijski sud u Zagrebu, 2 December 2014, Gž2-501/14-2, CRS20141202; Cass civ, s.u., 2 August 2011, No 16864, ITT20110802. 107 Cass, 13 May 2015 No 15-10872, FRT20150513a. 108 Trib per i minorenni di Caltanissetta, 28 January 2016, ITF20160128. 109 Cour d’appel de Montpellier, 8 November 2007 No 07/05012, FRS20071108. 110 KS v Českých Budějovicích, 11 October 2013, 5 Co 2019/2013, CZS20131011. 111 Najvyšší súd, 30 April 2013, 6 Cdo 1/2013, SKT20130430. 112 KS Bratislava, 28 January 2013, 11 CoP/508/2013, SKS20130128. 113 KS Bratislava, 30 May 2014, 20CoP/53/2014, SKS20140530; Krajský súd Nitra, 31 January 2014, 8CoP/77/2013, SKS20140131.

Finding a Habitual Residence  131 the court came to this conclusion based on the facts of the particular case and one cannot deduct a principled stance against dual habitual residence. Whether courts are more reluctant to find a dual habitual residence for adults than for children is unclear to me. Refraining from finding a dual habitual residence does seem in line with the recitals of the Succession Regulation.114 These recitals seem to provide guidelines in finding only one habitual residence, even for people who were very mobile during their lifetime.115 To my mind, the autonomous concept and the factors that the CJEU has laid down are meant to find one habitual residence. Ruling that an adult or a child has several habitual residences would impede the functioning of the Regulations. This could increase the courts that have jurisdiction. Moreover, accepting multiple habitual residences could make it impossible to determine whether one of the parents abducted a child. Some authority for my argument in favour of a single habitual residence was found among the EUFam’s cases. In two Greek cases the courts found that the acquisition of a new habitual residence coincides with the loss of the old habitual residence.116 An Italian first instance judgment also asserts this approach.117 The family had lived in Germany. Subsequently they were in Italy and the mother took the child to Germany. The father alleged that this was a child abduction. The mother retorted that the child’s habitual residence was in Germany and that the stay in Italy was only for holidays. In light of the contradictory evidence submitted by the parties, the court sought reports from the Italian and German social services. However, the Italian report was inconclusive and the German one was never submitted. The Italian court then used the rule in Article 13 of Brussels IIa for situations in which the child’s habitual residence could not be established. Thus, the court refrained from finding a double habitual residence.

X. Conclusion The heart can only be where it is physically present. The heart does not listen to rules: it is important that courts assess every single case upon its particular set of facts. The habitual residence will be assessed according to the same autonomous understanding throughout the EU. However, this does not mean that it is possible to insert a definition of habitual residence in legal texts as if it were a legal concept. The assessment remains based on facts, even though there are various factors that can help judges to locate the habitual residence. The CJEU have pointed out some of these factors, particularly for children. National courts have used these factors, but also other factual elements that they considered relevant in particular cases. The heart ticks at its own pace. The timing of habitual residence is different in the different Regulations: in most cases the habitual residence at the moment of the

114 Recitals 23 and 24. 115 Especially Recital 24. 116 Monomeles Protodikeio Kavalas, 11 January 2009 No 24/2009, ELF20090111; Monomeles Protodikeio Athinon, 31 May 2016 No 2389/2016, ELF20160531. 117 Trib Crotone, 27 June 2016, ITF20160627.

132  Thalia Kruger institution of the proceedings is relevant. However, the 1996 Hague Convention on the Protection of Children contains a different rule. For child abduction cases, it is the habitual residence immediately before the abduction that is pertinent. The heart has its own will, travels where it wishes, even illegally. Intention is important in the assessment of habitual residence, but is in itself not sufficient if not accompanied by physical presence. The heart can only be in one place at a time. Some courts have accepted that children could be habitually resident in more than one place at the same time. However, this chapter argues that that is not in line with the concept and the role it should fulfil.

12 Habitual Residence in the Succession Regulation JACOPO RE

I. Introduction Chosen both as its objective connecting factor and as its general head of jurisdiction, habitual residence is undoubtedly one of the cornerstones of the Succession Regulation.1 Although in line with other Private International Law Regulations,2 the European Union legislator’s choice represents a break in continuity, in the field of succession law, with regards to both national and supranational former solutions.3 This choice, coupled 1 Among the rich literature on the Regulation, and limiting the references to general works, see ex multis S Álvarez González and I Rodríguez-Uría Suárez, Estudios sobre ley aplicable a la sucesión mortis causa (Santiago de Compostela, Universidade de Santiago de Compostela, 2013); D Damascelli, Diritto internazionale privato delle successioni a causa di morte (Milano, Giuffrè, 2013); P Franzina and A Leandro (eds), Il diritto internazionale privato delle successioni mortis causa (Milano, Giuffrè, 2013); G Khairallah and M Revillard (dir), Droit européen des successions internationales. Le règlement du 4 juillet 2012 (Paris, Defrénois, 2013); J Carrascosa González, El Reglamento sucesorio europeo 650/2012 de 4 de julio 2012: análisis crítico (Granada, Editorial Comares, 2014); A Davì and A Zanobetti, Il nuovo diritto internazionale privato europeo delle successioni (Torino, Giappichelli, 2014); A Dutta and S Herrler (Hrsg), Die Europäische Erbrechtsverordnung (München, C.H. Beck, 2014); U Bergquist, D Damascelli, R Frimston, P Lagarde, F Odersky and B Reinhartz, EU Regulation on Succession and Wills (Köln, Otto Schmidt, 2015); A Bonomi and P Wautelet, Il regolamento europeo sulle successioni. Commentario al Reg. UE 650/2012 applicabile dal 17 agosto 2015 (Milano, Giuffrè, 2015); A Deixler-Hübner and M Schauer (Hrsg), Kommentar zur EU-Erbrechtsverordnung (Wien, Manz, 2015); JL Iglesias Buigues and G Palao Moreno (dir), Sucesiones internacionales. Comentario al Reglamento (UE) 650/2012, (Valencia, Tirant Lo Blanch, 2015); AL Calvo Caravaca, A Davì and HP Mansel (eds), The Succession Regulation. A Commentary (Cambridge, Cambridge University Press 2016); A Dutta and J Weber (Hrsg), Internationales Erbrecht (München, C.H. Beck, 2016); HP Pamboukis (ed), EU Succession Regulation No 650/2012. A Commentary (Athens, Nomiki Bibliothiki, 2017). 2 Habitual residence, as a head of jurisdiction in family and related matters, is foreseen, inter alia, in: Art 3(1) and Art 8 of Brussels IIa Regulation; Art 3(a) and (b) of Maintenance Regulation; Arts 5 and 6 of Matrimonial Property Regimes Regulation; and Art 6 of Regulation on the Property Consequences of Registered Partnerships. As objective connecting factor, habitual residence can be found in: Art 8(a) and (b) of Rome III Regulation; Art 3 of the 2007 Hague Maintenance Protocol (referred to by Art 15 of Maintenance Regulation); and Art 26(1)(a) of Matrimonial Property Regimes Regulation. 3 Suffice it to say that only Belgium, Estonia and the Netherlands (the latter unilaterally applying The Hague Convention of 1989) adopted habitual residence as a connecting factor in their domestic legislation, while international conventions – such as the convention of 19 November 1934 between Denmark, Finland, Iceland, Norway, and Sweden comprising private international law provisions on succession, wills and estate administration, as revised by the intergovernmental agreement between those States of 1 June 2012 and

134  Jacopo Re with the adoption of the principle of unity of succession,4 makes evident how habitual residence rests at the heart of the Regulation, and how important its correct localisation is for the proper functioning of the Regulation. Habitual residence is a personal, territorial and factual connecting factor.5 This implies that the localisation of a person in any given territory does not take place through the reference to a legal rule, but rather on the basis of the recognition and analysis of the relevant spatial connections. Indeed, it requires an overall assessment of the circumstances of the life of the person involved, taking into account all the relevant factual elements, with the aim of revealing a close and stable connection with a particular state. From this perspective, it is a flexible connecting factor, whose determination – not a priori, but on the basis of the specific connections of the case at stake, those being of a personal, factual or territorial nature – must take into account two elements: the objective, ie the physical bond of the person with a given territory, and the subjective, ie the intention of the subject to establish his residence in that given territory on a fixed basis, the so-called animus manendi.6 The Hague Convention of 1 August 1989 on the Law Applicable to Succession to the Estates of Deceased Persons – adopted habitual residence but only if it lasted for at least five years before the de cujus’ death or it was coupled by their citizenship. See A Bonomi, ‘Successions internationales: conflits de lois et de juridictions’ (t. 350, 2011) Recueil des cours 71, 176 ff. 4 The choice on the system to be adopted (whether the unity or the scission of succession) was easier than the one on the connecting factor, as the principle of unity shaped the majority of EU Member States’ legislation. However, the scission system was in force, at the time of the negotiations, in some important states, such as Belgium, France, Ireland and Malta, and in all the legal systems of the United Kingdom. For a comparative view of the conflict-oflaws landscape existing before the Succession Regulation see generally, among many, H Dörner and P Lagarde (eds), Etude de Droit Comparé sur les Règles de Conflit de Juridictions et de Conflits de Lois Relatives aux Testaments et Successions dans les Etats Membres de l’Union Européenne (Würzburg, Publication DNotI, 2002), also available in German; F Boulanger, Droit international des successions. Nouvelles approches comparatives et jurisprudentielles (Paris, Economica, 2004) 30 ff and 201 ff; M Revillard, Stratégie de transmission d’un patrimoine international. Nuovelles perspectives (Issy-les-Moulineaux, Defrénois, 2016) 17 ff. It is worth remembering that the decision of Ireland and the United Kingdom not to opt into the Succession Regulation – as per Art 3 of Protocol (No 21) on the Position of the United Kingdom and Ireland in Respect of the Area of Freedom, Security and Justice – was not based upon the option for the unitary approach, but rather for the inclusion, in the scope of the applicable law, of the issue of clawback and, in minor part, for the choice of habitual residence as the objective connecting factor. See especially European Union Committee, The EU’s Regulation on Succession (HL 2009–10, 75) paras 86–98, J Harris, ‘The Proposed EU Regulation on Succession and Wills: Prospects and Challenges’ (2008) Trust Law International 181, 196 ff and 210 ff. See also J Holliday, ‘Reconciling the European Union Succession Regulation with the Private International Law of the UK’ in J-S Bergé, S Francq and M Gardenes Santiago (eds), The Boundaries of European Private International Law. Les frontières du droit international privé européen. Las fronteras del derecho internacional privado europeo (Bruxelles, Bruylant, 2015) 297, 299 ff and A Davì, ‘Introduction’ in AL Calvo Caravaca, A Davì and HP Mansel (eds), The Succession Regulation 1, 16 f. 5 On the classification of connecting factors see generally F Vischer, ‘Chapter 4. Connecting Factors’ in K Lipstein (ed), vol. III Private International Law, International Encyclopedia of Comparative Law (Tübingen, M. Siebeck, 1999) 1 and HP Mansel, ‘Connecting Factors’ in J Basedow, G Rühl, F Ferrari and P de Miguel Asensio (eds), Encyclopedia of Private International Law (Cheltenham, Edward Elgar Publishing, 2017) 441. 6 On the dual character of the notion of habitual residence see M Mellone, ‘La nozione di residenza abituale e la sua interpretazione nelle norme di conflitto comunitarie’ (2010) RDIPP 685, 693 ff and E di Napoli, ‘A Place Called Home: il principio di territorialità e la localizzazione dei rapporti familiari nel diritto internazionale privato post-moderno’ (2013) RDIPP 899, 907 ff. For different interpretations on the weight of settled intention in determining a person’s habitual residence see B Audit and L d’Avout, Droit international privé (Paris, Economica, 2010) 143 f and PR Beaumont and PE McEleavy, Private International Law (Edinburgh, W. Green, 2011) 190 ff. On the notion of habitual residence in European Private International Law see generally MP Weller and B Rentsch, ‘“Habitual Residence”: A Plea for “Settled Intention”’ in S Leible (ed), General Principles of European Private International Law (Alphen aan den Rijn, Wolters Kluwer, 2016) 171 and B Rentsch, Der gewöhnliche Aufenthalt im System des Europäischen Kollisionsrechts (Tübingen, Mohr Siebeck, 2017).

Habitual Residence in the Succession Regulation  135 Like other supranational instruments that adopt habitual residence as a connecting factor or as a head of jurisdiction,7 the Succession Regulation does not foresee a legal definition of habitual residence.8 However, this is not particularly surprising. Indeed, habitual residence arises as an offshoot of domicile, but deprived of any legal definition, in order to avoid and prevent those interpretative contrasts that are typical of a legal connecting factor.9 In this perspective, it also facilitates the use of a functional and teleological interpretation to better pursue the objectives of the legal instrument adopting it.10 In order to also fully appreciate the importance of habitual residence in the Succession Regulation, it seems appropriate to divide the following analysis into two stages: the first shall focus on the notion of habitual residence adopted by the Regulation, and on its localisation, while the second shall focus on the rationale of its choice. 7 The first appearance of habitual residence in an international convention is dated back to the 1902 The Hague Convention Governing the Guardianship of Infants, whose Arts 2 and 3 refers to the law of the habitual residence of the minor when he/she is habitually resident in a country other than that of his/her nationality. The text of the Convention and its status table are available at www.hcch.net/en/instruments/the-old-conventions/1902guardianship-convention. This Convention is famous for having been at the heart of one of the few Private International Law disputes brought before the International Court of Justice. See, Case concerning the Application of the Convention of 1902 governing the Guardianship of Infants (Netherlands v. Sweden), Judgment of November 28th, 1958 (1958) I.C.J. Reports 55. On the application of Private International Law rules or techniques by the International Court of Justice, see generally R Higgins, ‘The International Court of Justice and Private International Law Thoughts. The Lalive Lecture Series 9 July 2007’ in R Higgins, Themes and Theories. Selected Essays, Speeches and Writings in International Law (Oxford, OUP, 2009) 1307; B Ubertazzi, ‘Private International Law before the International Court of Justice’ (2013/2014) YBPrIL 57. 8 However, when habitual residence is adopted in an international convention, its explanatory report may define it. See, for example, A Borrás, ‘Explanatory Report on the Convention, drawn up on the basis of Article K.3 of the Treaty on European Union, on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters’ [1998] OJ C221/27, 38 where habitual residence is defined as ‘the place where the person had established, on a fixed basis, his permanent or habitual centre of interests, with all the relevant facts being taken into account for the purpose of determining such residence’. 9 On the evolution of connecting factors in family and succession matters and on the difference between nationality, domicile and habitual residence see LI de Winter, ‘Nationality or Domicile? The Present State of Affairs’ (1969) 128 Recueil des Cours de l’Académie de Droit International 347; DF Cavers, ‘“Habitual Residence”: A Useful Concept?’ (1971–1972) AULR 475; P Rogerson, ‘Habitual Residence: The New Domicile?’ (2000) ICLQ 86; M Bogdan, ‘The EC Treaty and the Use of Nationality and Habitual Residence as Connecting Factors in International Family Law’ in J Meeusen, M Pertegás, G Straetmans and F Swennen (eds), International Family Law for the European Union (Antwerp, Intersentia, 2007) 303; P Franzina, ‘The Evolving Role of Nationality in Private International Law’ in A Annoni and S Forlati (eds), The Changing Role of Nationality in International Law (Abingdon, Routledge, 2013) 193; L d’Avout, ‘La lex personalis entre nationalité, domicile et résidence habituelle’ in L d’Avout, D Bureau and H Muir-Watt (dir), Les relations privées internationales. Mélanges en l’honneur du Professeur Bernard Audit (Issy-les-Moulineaux, LGDJ, 2014) 15; R Clerici, ‘Il criterio della cittadinanza e lo statuto personale dell’individuo: ascesa, declino e resilienza’ in A Di Stasi (ed), Cittadinanza, cittadinanze e nuovi status: profili internazionalistici ed europei e sviluppi nazionali (Napoli, Editoriale scientifica, 2018) 123. 10 See ex multis D Martiny, ‘Objectives and Values of (Private) International Law in Family Law’ and L Tomasi, C Ricci and S Bariatti, ‘Characterisation in Family Matters for Purposes of European Private International Law’ both in J Meeusen, M Pertegás, G Straetmans and F Swennen (eds), International Family Law for the European Union 69 and 341; C Parra Rodríguez, ‘Characterisation and Interpretation in European Family Law Matters’ and L Fumagalli, ‘Characterization in European Private International Law: Short Notes on the Interpretation Process from Independence to Functionality and Return (to the Tradition)’ both in A Malatesta, S Bariatti and F Pocar (eds), The External Dimension of EC Private International Law in Family and Succession Matters (Padova, CEDAM, 2008) 337 and 357; F Salerno, ‘Limiti e prospettive attuali della funzione interpretativa nel diritto internazionale privato’ (2016) RDIPP 687, 697 ff; S Bariatti, ‘Classification (characterization)’ in J Basedow, G Rühl, F Ferrari and P de Miguel Asensio (eds), Encyclopedia of Private International Law 357.

136  Jacopo Re

II.  Finding the Deceased’s Habitual Residence A.  Setting the Scene As already mentioned, the regulation does not provide a legal definition of habitual residence, nor does it refer to the substantive law of the Member State for its localisation; it is therefore an autonomous concept.11 Furthermore, being a connecting factor ascertained by factual circumstances, it is refractory to any legal definition. Accordingly, its determination must always be accomplished with an overall assessment of the various points of connection or relevant circumstances of the situation at stake. Moreover, a legal and a priori definition could hardly have been complete and detailed enough to be applied to all succession events that may occur in practice.12 Finally, the use of a factual criterion allows a functional and uniform interpretation of the criterion itself, contributing to achieving the legislative policy objectives pursued by the European Union with this regulation.13 From another point of view, habitual residence is a connecting factor foreseen in many international conventions and other EU Private International Law Regulations.14 It might be questioned whether the concept of habitual residence adopted by the Succession Regulation corresponds to that of the instruments referred to above. If, on the one hand, habitual residence is always used to determine the centre of a person’s life,15 taking into account the preponderant localisation of his interests, the reference to 11 See, on this point, mutatis mutandis, Case C-497/10 PPU Barbara Mercredi v Richard Chaffe [2010] ECR I-14309, EU:C:2010:829 paras 45 f. See especially M Audit, ‘L’interprétation autonome du droit international privé communautaire’ (2004) JDI 789; A Marmisse-d’Abbadie d’Arrast, ‘Qualification et concepts autonomes dans l’élaboration d’un code européen de droit international privé’ in M Fallon, P Lagarde and S Poillot-Peruzzetto (dir) Quelle architecture pour un code européen de droit international privé? (Bruxelles, P.I.E. Peter Lang, 2011) 319 ff. 12 Such a definition, indeed, would have inevitably showed both some gaps and some interpretative difficulties. This would have undermined the goal of legal certainty, at the heart of the Succession Regulation, and, due to its rigidity, would have led to results inconsistent with conflictual justice goals typical of such a criterion, like proximity. See especially Davì and Zanobetti (n 1) 48 f. On the divide between material justice and conflictual justice, see G Kegel, ‘Paternal Home and Dream Home: Traditional Conflict of Laws and the American Reformers’ (1979) AJCL 615, 616 ff and more recently S Symeonides, ‘Private International Law: Idealism, Pragmatism, Eclecticism. General Course on Private International Law’ (2017) 384 Recueil des Cours de l’Académie de Droit International 9, 195 ff. 13 For an assessment of the impact of European Union Private International Law rules on the removal of obstacles to the free movement of people see A Lang, ‘Impact of the Regulations on the Free Movement of Persons in the EU’ in ch 25 of this book. 14 Moreover, other areas of European Union law refer to habitual residence too: see, eg, Art 4(1)(a) of Annex VII of the Staff Regulations of Officials of the European Union (most recently amended by Commission Delegated Regulation (EU) 2016/1611 of 7 July 2016 on reviewing the scale for missions by officials and other servants of the European Union in the Member States [2016] OJ L242/1) and Art 11 Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems [2004] OJ L166/1. However, according to the Court of Justice of the European Union, Case C-523/07 A [2009] ECR I-02805, ECLI:EU:C:2009:225 para 36 ‘the case-law of the Court relating to the concept of habitual residence in other areas of European Union law … cannot be directly transposed in the context of the assessment of … habitual residence’ in Private International Law Regulations. 15 For a definition of habitual residence as a ‘rattachement “centre-vie”’ see already MH van Hoogstraten, ‘La codification par traités en droit international privé dans le cadre de la Conférence de la Haye’ (1967) 122 Recueil des Cours de l’Académie de Droit International 337, 355 ff; E Jayme, ‘Identité culturelle et intégration: le droit international privé postmoderne. Cours général de droit international privé’ (1995) 251 Recueil des Cours de l’Académie de Droit International 9, 206 f.

Habitual Residence in the Succession Regulation  137 a teleological and functional interpretation, on the other hand, would lead to a careful selection and assessment of those connection points, of the situation at stake, which are relevant for the category of cases (and persons) included under the scope of each instrument.16 Thus, just for example, to determine the habitual residence of a child, as per Brussels IIa Regulation, it is necessary to consider, in addition to the physical presence, the ‘duration, regularity, conditions and reasons for the stay on the territory of a Member State and the family’s move to that State, the child’s nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that State’.17 Conversely, the notion of habitual residence of spouses in the same Regulation – not interpreted, so far, by the Court of Justice of the European Union – makes reference to the personal and working or professional life of the spouses (aiming at assessing where the family settled, the duration of the stay, and where they work), the spouses’ intention and future plans, their properties,and their economic interests, including where they pay taxes.18 In this perspective, it is necessary to examine carefully which hermeneutical tools are available for the legal practitioner in order to determine the deceased’s habitual residence. As is shown by the foregoing, the interpretation of the concept of habitual residence, for the purpose of the Succession Regulation, cannot be carried out via an automatic transposition of Court of Justice of the European Union case law on the same concept, but adopted in other areas of European Union law. Furthermore, in the absence of any reference to the law of the Member States as regards the determination of the meaning and scope of that criterion, habitual residence must be established ‘having regard to the context of the provision and the objective pursued by the legislation in question’.19 In addition, the legal practitioner is also called to take particular caution in transposing the interpretation of the habitual residence criterion given by the Court of Justice of the European Union, or national courts, in the context of other EU Private International Law Regulations. The same is true when a Private International Law Regulation adopts

16 Therefore, it should not be surprising that the legal scholarship has been more interested, in recent years, in analysing and localising habitual residence with respect to a specific category of persons (eg, child’s habitual residence, spouses’ habitual residence, creditor’s habitual residence), especially in commenting on leading cases, rather than trying to formulate a general rule for the determination of habitual residence per se. And the present chapter is no exception. Indeed, as the author wishes to explain, finding habitual residence in the context of the Succession Regulation requires the assessment of certain connecting points of the deceased’s life that are different from those evaluated for the spouses’ habitual residence and for the child’s habitual residence – unless the deceased is a child. 17 See Case C-523/07 A (n 14) para 39, on which see R Lamont, ‘Case C-523/07, A, Judgment of the Court (Third Chamber) of 2 April 2009, Not Yet Reported’ (2010) CMLRev 235 and S Marino, ‘Nuovi criteri interpretativi per la determinazione della giurisdizione in materia di responsabilità genitoriale: la nozione di residenza abituale dei minori in una recente sentenza della Corte di giustizia CE’ (2010) RDP 461. 18 For a thorough analysis of the case law stemming from different jurisdictions, interpreting spouses’ habitual residence for the purpose of applying Art 3 of Brussels IIa Regulation and Art 8 of Rome III Regulation (see T Kruger, ch 11). See also A Bonomi, ‘La compétence internationale en matière de divorce’ (2017) RCDIP 511; A Limante, ‘Establishing habitual residence of adults under the Brussels IIa regulation: best practices from national case-law’ (2018) JPIL 160. 19 Again, with reference to the forming European Private International Law system, see Case C-523/07 A (n 14) para 34.

138  Jacopo Re a legal definition of habitual residence: that legal definition cannot be analogically applied.20 More controversial is when habitual residence is not legally defined and it is used in other EU Private International Law Regulations in family and personal matters. In these cases, although a certain degree of coherence is desired,21 it should be borne in mind that each Regulation has its own material and personal scope, with evident consequences on the selection of the relevant personal and spatial connection of the situation under examination. Additionally, habitual residence does not only refer to a single person (the child, the deceased), but also to a couple (the spouses). This implies that the habitual residence of a given person, such as the deceased spouse, may be localised in different countries for different causes of action.22 Therefore, in complex cases, the legal practitioner should autonomously localise the habitual residence for each cause of action, ie the deceased’s habitual residence and the spouse’s habitual residence, rather than automatically transposing findings regarding one cause of action to the other.

B.  Finding Habitual Residence: The Regulation’s Recitals Aware of both the difficulties in localising a factual connecting factor (and a head of jurisdiction), as well as the inevitable problems of interpretation and gaps that characterise any legal definition, the European Union legislator provided the interpreter with some guidance in Recitals 23 and 24 of the Succession Regulation.23 It is worth noting that the Regulation Proposal24 did not foresee those Recitals. Indeed, their adoption was the result of a compromise between the positions of some states, such as the United

20 As in the case of Art 23 of Rome II Regulation and of Art 19 of Rome I Regulation. 21 For an analysis of the coherence of EU Private International Law regulations in civil and commercial matters (Brussels Ia, Rome I and Rome II) see SA Sánchez Lorenzo, ‘El pricipio de coherencia en el Derecho internacional privado europeo’ (2018) REDI 17. 22 The consequent simultaneous application of different laws to different aspects of the same case requires the legal practitioner to characterise each request carefully. Should an interpretative question be raised before a court, it would be appropriate for the judge to ask a preliminary ruling to the Court of Justice. See, for example, on the characterisation of §§ 1371 and 1931 III BGB – ie the lump sum equalizing accrued gains in the case of death of a spouse – as a matter related to succession and not to a matrimonial regime Case C-558/16 Doris Margret Lisette Mahnkopf [2018] ECLI:EU:C:2018:138 para 40. On § 1371 BGB see for all P Gottwald, ‘Part IV. Law of Succession’ in D Schwab, P Gottwald and S Lettmaier, Family and Succession Law in Germany (Alphen aan den Rijn, Kluwer Law International BV, 2012) 133, 139 ff. On the CJEU decision see H Dörner, ‘Better too late than never – The classification of § 1371 Sect. 1 German Civil Code as relating to matrimonial property in German and European Private International Law (BGH, S. 102)’ (2017) IPRax 81 and F Maoli, ‘Successioni, regimi patrimoniali tra coniugi e problemi di qualificazione in una recente pronuncia della Corte di giustizia’ (2018) RDIPP 676. 23 On the role of recitals in EU legislation see Joint Practical Guide of the European Parliament, the Council and the Commission for Persons Involved in the Drafting of European Union Legislation (Luxembourg, Publications Office of the European Union, 2015) 31 ff, and in legal doctrine T Klimas and J Vaičiukaitė, ‘The Law of Recitals in European Community Legislation’ (2008–2009) ILSAJI&CL 61; R Baratta, ‘Complexity of EU Law in the Domestic Implementing Process’ (2014) The Theory and Practice of Legislation 293, 302 ff. 24 See Proposal for a Regulation of the European Parliament and of the Council on jurisdiction, applicable law, recognition and enforcement of decisions and authentic instruments in matters of succession and the creation of a European Certificate of Succession, 14 October 2009, COM(2009) 154 final.

Habitual Residence in the Succession Regulation  139 Kingdom, who favoured the inclusion of a legal definition to foster legal certainty, and those of other states who preferred a case-by-case determination.25 From this point of view, Recital 23 proposes method, content and purpose of the procedure in order to determine habitual residence according to the Regulation. The method is derived from the proximity principle26 and requires a global assessment of the circumstances of the life of the deceased in the years preceding death and at the time of death. This recognition must take account of all relevant factual elements, such as the duration and regularity of the deceased’s residence in the state in question, as well as the conditions and reasons for the residency. The purpose of this procedure is to establish a close and stable connection with that state while considering the specific objectives of the regulation.27 For the time being, it seems appropriate to investigate which points of connexion of a succession are significant for determining the deceased’s habitual residence.28 These may include personal, family, professional and economic interests.29 Thus, it is necessary to ascertain where the deceased lived, the reasons for his residency and its duration.30 In principle, family and personal ties, such as the centre of social relations of the deceased, should prevail over work ties.31 Thus, by way of example, if a person crosses

25 See for the United Kingdom position Harris (n 4) 211 f. For the debate in the aftermath to the Commission proposal see A Dutta, ‘Succession and Wills in the Conflict of Laws on the Eve of Europeanisation’ (2009) RabelsZ 547, 560 ff; E Lein, ‘A Step Towards a European Code of Private International Law. The Commission Proposal for a Regulation on Succession’ (2009) YBPrIL 107, 128 ff; A Bonomi, ‘Prime considerazioni sulla proposta di regolamento sulle successioni’ (2010) RDIPP 875, 882 ff; P Kindler, ‘From Nationality to Habitual Residence: Some Brief Remarks on the Future EU Regulation on International Succession and Wills’ in K Boele-Woelki, T Einhorn, D Girsberger and S Symeonides (eds), Convergences and Divergences in Private International Law – Liber Amicorum Kurt Siehr (The Hague, Eleven International Publishing, 2010) 251, 252 ff. For the interpretation of Recitals 23 and 24 of the Succession Regulation see, among many, and in addition to the comments under Art 4 and Art 21 of the Commentaries cited in fn 1, G Khairallah, ‘La determination de la loi applicable à la succession’ in G Khairallah and M Revillard (dir), Droit européen des successions international 47, 51 f; Carrascosa González, El Reglamento sucesorio europeo 80 ff; Davì and Zanobetti (n 1) 46 ff. 26 On which see especially P Lagarde, ‘Le principe de proximité dans le droit international privé contemporain. Cours général de droit international privé’ (1986) 196 Recueil des Cours de l’Académie de Droit International 9 ff and T Ballarino and GP Romano, ‘Le principe de proximité chez Paul Lagarde’ in Le droit international privé: esprit et méthodes. Mélanges en l’honneur de Paul Lagarde (Paris, Dalloz, 2005) 37 ff. 27 Recital 23, thus, is in line with the results of the most recent doctrinal investigations. As it has been seen, habitual residence is determined by combining the length of time a person stays in the territory of a Member State, in light of the characteristics of this residence, with the person’s intention to establish the main centre of his life and business interests in a that place. In this perspective, see especially Opinion of Advocate General Campos Sánchez-Bordona in Case C-80/19 E. E. [2020] ECLI:EU:C:2020:230, paras 47 and 52. But see Khairallah, ‘La determination de la loi applicable à la succession’ 51, according to whom the regulation’s provisions avoid any direct reference to the deceased’s intention. 28 It should be noted that, for the purpose of applying its rules, the Succession Regulation not only adopts the deceased’s habitual residence as a connecting factor and head of jurisdiction, but also the habitual residence of other persons, ie related heirs and legatees (pursuant to Arts 13 and 28, Succession Regulation). However, since habitual residence indicates the place in which a person establishes the centre of his life on a fixed basis, the present author considers that the indications given below also apply, mutatis mutandis, when locating the habitual residence of these other persons. 29 See A Davì and A Zanobetti (n 1) 48. 30 Of course, for a residence to be habitual, the temporal element is fundamental. See EB Crawford, ‘A Day is Not Enough: Further Views on the Meaning of Habitual Residence’ (2000) JurRev 89; AL Calvo Caravaca, ‘Article 21. General Rule’ in Calvo Caravaca, Davì and Mansel (eds), The Succession Regulation 298, 305 f. 31 See A Bonomi and R Di Iorio, ‘Competenza generale (art. 4)’ in A Bonomi and P Wautelet, Il regolamento europeo sulle successioni (Milano, Giuffrè, 2015) 121, 127.

140  Jacopo Re the border every day to commute to his place of work, it is clear that the habitual residence is the place where he lives. The same applies if the worker has a home in the state in which he works, but returns every weekend to the centre of his social and relationship life, namely his family and friends. On the other hand, the importance of the place of professional activity on the deceased’s life must be assessed on a case-by-case basis. Assets’ location – real and personal property, bank accounts and equity portfolios – must be taken into consideration when determining the deceased’s habitual residence, since these economic interests are the heart of the succession phenomenon.32 Finally, the deceased’s citizenship and domicile shall be taken into account, as they were the connecting factors previously adopted in the Member States. Clearly, this list of connecting points is not exhaustive. The very nature of habitual residence requires that every aspect of the person’s life has to be ascertained and evaluated.33 After that recognition, the legal practitioner shall determine the deceased’s habitual residence, which should reveal a close and stable connection with the state concerned, considering the specific aims of the Regulation. To this end, he may proceed to evaluate the relevant contact points in two ways: either by grouping or by weighing those contacts.34 In the first case, the determination of the deceased’s habitual residence is reached via a quantitative grouping of the various contacts; in other words, the deceased’s habitual residence is to be found in the state referred to by the greater number of contacts. By contrast, the weighing of contacts technique recognises the different value and weight of each point of connection. Therefore, the legal practitioner has to identify the deceased’s habitual residence by means of a value judgement on each connection circumstance. In other words, habitual residence is to be found in the state referred to by the most significant points of connection. Since the Succession Regulation is silent on the matter, the choice of the method to be used is left at the discretion of the interpreter. In this regard, it can be said that although the criterion of grouping contacts is sometime able to identify the state to which the deceased has a close and stable connection, nevertheless the correlation and intensity of the link between an inheritance and a given state cannot always avoid a minimum qualitative appreciation of the connecting circumstances.35

32 ibid 128. 33 As stated by Calvo Caravaca, ‘Article 21. General Rule’ 303 ff, habitual residence is an ‘overall, weighted and casuistic concept’. As per the personal contacts, the author recalls the physical presence of the deceased in a given state, where his/her family members live, the rental or the purchase of a house, the place of schooling of his/her children, and the presence of any administrative ties. Other personal connections, aiming at identifying the place of the deceased’s social integration and relationships might be the language spoken, the existence of a network of friends, the participation in associations, or the remittance of money to family members in the home state. As per the professional criteria, contacts to be taken into account might be the practice of a professional activity or the place of employment, the attendance of professional training or qualification/university postgraduate courses, and the opening of a bank account. 34 The terminology ‘grouping of contacts’ and ‘weighing of contacts’ derives from the English proper law of contracts and the localisation of the closest connection. See on the matter AJE Jaffey, ‘The English Proper Law Doctrine and the EEC Convention’ (1984) ICLQ 531, 533 ff and R Baratta, Il collegamento più stretto nel diritto internazionale dei contratti (Milano, Giuffrè, 1991) 118 ff. 35 Again, see Calvo Caravaca (n 30) 304, for the qualification of habitual residence as a weighted concept.

Habitual Residence in the Succession Regulation  141 Indeed, the rationale of a connecting factor (and head of jurisdiction) inspired by the proximity principle contrasts with the possibility of reducing its functioning to a simple counting of contacts of the situation at stake among the different states they referred to, neglecting any reference to the importance that they have within the actual case (and that they had in the deceased’s life). Moreover, the two methods described above might be deemed to be in an inversely proportional relationship. In fact, the greater the concentration of contacts is in a given state, the lower the need to weigh the connections that the situation has with other states. Conversely, the greater the dispersion of contacts is between states, the higher the need for to weigh such contacts. The same relationship may be considered for the time element: the greater the concentration of contacts, the quicker the acquisition of an habitual residence in that place. Accordingly, the determination of habitual residence is easier when the case presents a minimum or moderate degree of dispersion of the relevant connections, while, on the contrary, it becomes more complex when the succession case presents a high degree of internationality. The European Union legislator has proved to be sensitive to these types of situations, which are considered in Recital 24. This Recital focuses on two different situations: the first concerns the case in which the deceased lived abroad for a long period, for professional or economic reasons, but maintained a fixed close connection with the state of origin. The second concerns the hypothesis in which the deceased lived alternately in several states or had moved from one state to another without having permanently resided in any of them. With reference to the first situation, Recital 24 reminds the interpreter of the need to assess the relevant circumstances of the case and suggests that the deceased might have maintained his habitual residence in the state of origin, in which the centre of his family and social life interests was situated. With regard to the second hypothesis, the Recital recalls the importance of the citizenship of the deceased and the location of its main assets in a given state, since his nationality or the location of those assets could be a special factor in the overall assessment of all the factual circumstance. Below are a few examples36 to better appreciate what has been abstractly considered.37 Case 1. Emilia, an Italian citizen, lives with her family in Como (Italy), where she works. All of her movable and immovable property is located in Italy, with the exception of a holiday home in Chania (Greece). In this simple case, it seems very easy to locate Emilia’s habitual residence in Italy, the country where she has a close and stable connection and where the centre of her life and her interests are. Indeed, the location of the real estate abroad ‘n’est

36 All examples are fictitious: any resemblance to actual persons, living or dead, or actual events is purely coincidental. 37 As the phenomenon of successions experienced, in the last century, both a democratisation – namely, transmission of wealth through inheritance is no longer reserved to the happy few, but is also available to an increasing middle class – and an internationalisation – that is, the presence of contacts with more than one state – the succession of the estate of a migrant worker may be as complex as the one of a very wealthy person. See GAL Droz, ‘Regards sur le droit international privé comparé. Cours général de droit international privé’ (1991) 229 Recueil des Cours de l’Académie de Droit International 9, 226. On the democratisation and internationalisation of successions see Bonomi (n 3) 91 ff and W Pintens, ‘Need and Opportunity of Convergence in European Succession Law’ in M Anderson and E Arroyo i Amayuelas (eds), The Law of Succession: Testamentary Freedom. European Perspectives (Groningen, Europa Law Publishing, 2011) 5 ff.

142  Jacopo Re qu’un satellite artificiel du patrimoine’.38 The same solution would also be reached if Emilia worked in the nearby Canton Ticino (Switzerland) and had a bank account there to receive her salary; in this different situation, the centre of her life is nevertheless in Italy, and her personal and family ties can be considered to prevail over professional interests. Case 2. James, an Irish citizen, unmarried and childless, works for an Irish multinational company in both the Dublin office and the Italian one. James owns real estate in Ireland and Italy; his main bank account, where his salary is paid, is in an Irish bank. He usually spends the first four days of the week in Dublin and returns to Italy on Thursday evening. This last circumstance could suggest that Italy is the centre of James’ relationship life, a country in which he also has real estate. On the other hand, he owns real estate in Ireland, where he has his main bank account; James’ citizenship is also Irish. James’ case represents one of the two hypotheses taken into consideration in Recital 24 – the one in which the deceased lived in several states without having established himself permanently in any of them – which helps the interpreter to determine correctly his habitual residence as being in Ireland. In this case, a primary role is given to his Irish citizenship and to the localisation of property in Ireland. What is shown here, however, confirms the opinion that weighing the relevant contacts becomes more necessary as the degree of internationality of the case in question increases, or even is polarised between only two states.39 Case 3. Nadia, an Ukrainian citizen, has been legally living in Italy for 15 years, where she works as a caregiver and has a bank account into which her salary is paid. She remits part of her earnings into a Ukrainian bank account; her family lives in Ukraine and she has bought a house there where she intends to live in once she retires. Her extended residency in Italy could suggest that Nadia’s habitual residence is in Italy; however, on the one hand, Recital 23 requires a court to ascertain the reasons for personal presence in a given state, whereas, on the other hand, Recital 24 refers to the very case in which a person goes abroad for work reasons. There is no doubt that care work is the reason for Nadia’s stay in Italy, but all her family ties, some economic interests, her nationality and her future prospects lead to Ukraine. In this type of circumstances, the legal practitioner is called upon to weigh the various relevant contacts very carefully. Should she die before retiring, it might be sensible to localise her habitual residence in Italy. However, once retired in Ukraine, she would acquire habitual residence there in a very short time. Case 4. George Beth is a UK citizen. He was born in Edinburgh in 1955. He has by birth a domicile of origin in Italy. He dies on September 2015, as a consequence of serious injuries sustained in a car accident. His estate is comprised of immovable properties in Italy as well as in Scotland and movable assets in Switzerland, Italy and Scotland. He has a spouse and two twin sons: James, who lives in London, and Malcom, who lives in Milan. From 2011, he spent most of his time in Scotland, due to work, with his wife, after living for decades in Italy. During his life, Mr Beth donated: (i) in 2005, part of his Swiss investment portfolio to Filippo (his sister’s son) on the occasion of his wedding; and (ii) in 2014, an apartment in London to James. The overall assessment of Mr Beth’s points of contact shows that his connections 38 In this regard, and considering the connecting factor ‘centre-vie’ for a reform of French conflict-oflaws rules, see already GAL Droz, ‘La codification du droit international privé des successions: perspectives nouvelles’ (1966–1969) TCFDIP 319, 323 f. According to the French author, when the deceased is domiciled in the state of its nationality, that state represents the centre of economic, social, legal and family interests. 39 It might be questioned if a person may have two different habitual residences in two states. On the matter, see below under para III.

Habitual Residence in the Succession Regulation  143 to Italy are: immovable properties, movable assets, Malcom’s residence and his domicile of origin. Those to Scotland are: immovable properties (comprising the home where he lived with his wife), his wife’s residence, movable assets (comprising his main bank account), his UK nationality, and, as Mr Beth is not in the age of retirement, a profession that allows him to work in Scotland for the most of his time. James’ residence is the sole connection to England, while a part of his movable assets is the only connection to Switzerland. Clearly, neither England nor Switzerland are the countries of Mr Beth’s last habitual residence, due to the fact that the links to those states are not so significant. On the other side, significant connections of his life point to both Scotland and Italy. The overall assessment of these connections should localise Scotland as Mr Beth’s habitual residence at death, as it seems to be the country with the majority of links, but also the most significant ones (the house shared with his wife, his nationality, his place of work).

C.  Finding Habitual Residence: EUFam’s Practice After having exposed how to localise habitual residence for the purpose of applying the Succession Regulation, and having provided some examples, it is now time to analyse the relevant case law. In the EUFam’s database,40 only six decisions out of 790 make reference to the Succession Regulation.41 Three of them deal with the temporal scope of the regulation,42 one on the compulsory issuance of the European Certificate of Succession,43 and the other two on the competent authority44 and on the law applicable.45 In the latter 40 See the thirteenth version of the EUFam’s case law database of 14 June 2018, available at www.eufams. unimi.it/category/database/. 41 This should not come as a surprise, since, on the one hand, the Succession Regulation is applicable, as per Art 83(1), to the succession of persons who die on or after 17 August 2015, and, on the other hand, the database contains the selected Member States’ case law up to 31 December 2017. 42 See Dirección General de los Registros y del Notariado, 29 July 2015 No 10466/2015, ESA20150729; Općinski sud u Vukovaru, 17 February 2016 No 2543/15, CRF20160217; Monomeles Efeteio Thessalonikis, 20 December 2016 No 1207/2016, ELS20161202. 43 See Окръжен съд – Ямбол, 4 May 2016, BGS20160504. 44 It is worth remembering that, as per Art 3(2), the term Court means ‘any judicial authority and all other authorities and legal professionals with competence in matters of succession which exercise judicial functions or act pursuant to a delegation of power by a judicial authority or act under the control of a judicial authority’. It might comprise, under certain circumstances, a notary too. See, among many, O Feraci, ‘La nuova disciplina europea della competenza giurisdizionale in materia di successioni mortis causa’ in (2013) CDT 291, 296 ff; H Gaudemet-Tallon, ‘Les règles de compétence judiciaire dans le règlement européen sur les successions’ in G Khairallah and M Revillard (dir), Droit européen des successions international 127, 128 f; A Leandro, ‘La giurisdizione nel regolamento dell’Unione europea sulle successioni mortis causa’ in P Franzina and A Leandro (a cura di), Il diritto internazionale privato delle successioni mortis causa 59; Davì and Zanobetti (n 1) 197; A Bonomi and P Wautelet, ‘Definizioni (art. 3)’ in Bonomi and Wautelet, Il regolamento europeo sulle successioni 85, 107 ff; M Weller, ‘Article 3. Definitions’ in Calvo Caravaca, Davì and Mansel (eds), The Succession Regulation 114, 122 f; G Nikolaidis, ‘Article 3. Definitions’ in Pamboukis (ed), EU Succession Regulation No 650/2012 93, 106 ff. However, on the notion of court and the role of notary in Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims [2004] OJ L143/15, see Case C-484/15 Ibrica Zulfikarpašić v Slaven Gajer [2017] EU:C:2017:199 para 44 ff, on which see C Nourissat, ‘Le notaire n’est pas une juridiction au sens des règlements européens de coopération judiciaire civile’ (2017) La Semaine Juridique Notariale et Immobilière 1184. 45 See Općinski građanski sud u Zagrebu, 6 June 2016 No 1895/16, CRF20160606; Općinski sud u Bjelovaru, SS u Garešnici, 27 May 2016 No 3199/15-9, CRF20160527.

144  Jacopo Re decisions, it was important to determine the deceased’s habitual residence. Both cases show a low degree of internationality. In fact, all but one contact were located in one state, with the sole ‘foreign’ contact being a bank account in a different state. In this situation, it was not difficult at all to locate the deceased’s habitual residence in the first state.46 Another recent decision of an Italian court may be of interest.47 In this case the deceased lived in the state of New York at the time of his death. He had a wife there, where they married in 1989. His wife still lives there, as well as his family. His working ties were located there. In Italy he had several real properties and a general proxy to his brother for the administration of his interests. After having gathered and assessed all the relevant contacts, the Tribunal recognised that the deceased was habitually resident in the state of New York. It might be asked if some guidance, in determining habitual residence, may be offered by the case law related to other EU Private International Law Regulations in family and personal matters. This may be the case if the situation at stake refers to a minor. Indeed, both the Brussels IIa Regulation and Succession Regulation are informed by the proximity principle.48 In localising the deceased minor’s habitual residence, the relevant points of contact selected for the determination of the child’s habitual residence in Brussels IIa may be used for the application of the Succession Regulation too.49 Accordingly, the interpreter will benefit from the relevant case law of the Court of Justice of the European Union,50 as well as that of Member States’ courts.51 Things change when habitual residence – or better, common habitual residence – refers to spouses. In this case the legal practitioner needs to find a family’s centre of

46 It is worth noting that the decision of the Municipal Court of Zagreb (CRF20160606) has a fact pattern similar to the above mentioned example No 3. In fact, a Croatian citizen (born in 1946) died in Zagreb, Croatia on 25 January 2016. His last habitual residence was in Croatia. Although he lived and worked in Germany for 25 years, when he retired he moved to Croatia. During his life he had a close connection to Croatia, because he owned a house and regularly went to visit his family during holidays. Almost all of his property (both movable and immovable) was situated in Croatia. At the time of his death, outside Croatia there was only a bank account in Germany. Accordingly, the court found that the deceased had his habitual residence in Croatia. 47 See Trib Salerno, order 14 April 2018 not yet reported. 48 As per Recital 12 of Brussels IIa Regulation jurisdiction in matters of parental responsibility is ‘shaped in the light of the best interests of the child, in particular on the criterion of proximity’. 49 See, among many, A Bonomi, R Di Iorio (n 31) 127. 50 See Case C-523/07 A (n 14); CJEU, Case C-497/10 PPU Mercredi (n 11); Case C-499/15 W and V v X [2017] ECLI:EU:C:2017:118; Case C-111/17 PPU OL v PQ [2017] EU:C:2017:436; CJEU, C-393/18 PPU UD v XB [2018] ECLI:EU:C:2018:835. The reported CJEU case law suggests that a number of factual elements must be taken into account in determining a child’s habitual residence. These include, but are not limited to, the duration, regularity, conditions and reasons for the stay on the territory of a given state, the reason for the family moving, the child’s nationality, the place and conditions of attendance at school, their linguistic knowledge, and their family and social relationships in that state. 51 Other relevant connections for a child, in addition to those suggested by the CJEU, have been evaluated by the courts of the Member States, such as: (i) their extra-curricular activities; (ii) their registered residence (whether combined with receiving a child’s benefit from state authorities or not); (iii) their sports activities; (iv) their stay in foster families; and (v) their language skills. Moreover, referring to the duration of the stay, it seems that German case law foresees a sort of six-month test in order to evaluate whether a child’s habitual residence can change or not. For an analysis of Member States’ case law, see J Re, ‘Objective Connecting Factors’ in I Viarengo and FC Villata First Assessment Report on the case-law collected by the Research Consortium (2016) 71, 75 ff at www.eufams.unimi.it/2017/01/09/firstassessmentreport/.

Habitual Residence in the Succession Regulation  145 gravity, rather than that of a person. However, if the contacts of a family52 have a low degree of dispersion, it well may be that the deceased’s habitual residence coincides with the spouse’s habitual residence. Conversely, the more the family’s life crosses borders, the higher is the possibility that the deceased’s habitual residence is located in a country other than that of the spouse’s common habitual residence.53 Therefore, in jigsaw situations, the legal practitioner might apply different laws to the various aspects of the same case, not only as a consequence of a choice made by the parties (eg a choice of the applicable law to the matrimonial regime), but also as the result of different localisations of the same connecting factor adopted by the specific conflict-of-laws rule applicable to each cause of action. Eventually, the praxis analysed seems to prove what was previously stated. The adoption of habitual residence as a connecting factor (and head of jurisdiction) requires the legal practitioner to use a case-by-case approach. Indeed, lacking any legal definition, habitual residence shall be localised by taking into account all the relevant points of connection. Moreover, the difficulties in determining the deceased’s habitual residence are proportionate to the dispersions of the relevant contacts in the states concerned. The determination of habitual residence, therefore, is easier when the case presents a minimum or moderate degree of dispersion of the relevant connections. On the contrary, it becomes more complex when the succession case presents a high degree of internationality. As a consequence, the higher the degree of internationality, the greater the need to assess and weigh the relevant contacts.

III.  Habitual Residence Rationale The proposed analysis helps to evaluate the rationale of the choice made by the European Union legislator in favour of habitual residence both as the objective connecting factor and as the general head of jurisdiction. As already said, habitual residence locates the deceased in the state of his main centre of interests. From this point of view, habitual residence complies with the proximity principle. Indeed, in the current economic and social situation, the place of the

52 For an in-depth recognition of all relevant contacts, see Trib Milano, order 16 April 2014, ITF20140416, in (2015) RDIPP 162, and Cass, 24 February 2016 No 15-10.288, FRT20160224. 53 See again Trib Milano, order 16 April 2014, ITF20140416. In determining the law applicable to a divorce claim, the Court has engaged itself in a thorough analysis of all the relevant connections of the couple. After a careful balance of those connections – in which a combination of qualitative and quantitative elements has been deemed necessary – the Court found that many factual elements (such as: buying a house there, taking the driving licence there, enrolling the child in a school in Lugano, paying social assistance contributions for the wife) pointed to the couple’s intention to settle their centre of interest in Switzerland, therefore declaring that they were habitually resident in that country. The contacts taken into account were: each spouses’ citizenship and registered residence; the places (and the length of each stay) where they spent their year (ie from November to April in Santo Domingo, July and August on board a ship across the Mediterranean Sea, the rest of the year between Lugano, Switzerland and Milan, Italy); the place of their child’s school; the number of days spent in Lugano and Milan; the place where they bought the ‘family house’; the change of their child’s school; the request of a Swiss ‘permit of domicile’ for each family member; the spouse/mother’s driving licence; paying a social assistance contribution; the child’s medical examinations, birthday party, sports and social activities.

146  Jacopo Re deceased’s habitual residence is often the place in which most of his property is located and where the majority of heirs, legatees and creditors are.54 Moreover, habitual residence favours both the integration of the foreigner – more precisely, the mobile individual – in the social environment in which he decides to establish himself55 and, at the same time, the free movement of people within the European Union.56 On the other hand, it ensures the application of the same law to all successions of persons having their habitual residence in a given state. Therefore, habitual residence implies that the successions of all individuals having their centre-vie in a given state are subject to its law.57 This will prevent any different outcome based on the deceased’s nationality, on the one hand, and will limit the recourse to public policy if the succession is managed by the authority of the deceased’s habitual residence, on the other hand.58 This last consideration unveils a further advantage of habitual residence. European Union countries now experience strong flows of immigration. Thus, the connecting factor chosen will allow the legal practitioner and the judge of the state of the deceased’s habitual residence to apply its own local law in the majority of cases. Consequently, the application of a foreign law will be avoided to a greater extent. This will prevent the intrinsic difficulties related to the application of a foreign law,59 such as its legal status, knowledge of its content and its interpretation.60 In the end, 54 See already A Davì, ‘Riflessioni sul futuro diritto internazionale privato europeo delle successioni’ (2005) RDI 297, 307. Accordingly see Kindler (n 25) 254. 55 See already the Explanatory Memorandum to Art 16 of the Commission Proposal and Davì and Zanobetti (n 1) 44; Carrascosa González (n 1) 150 f. 56 However, as it has been pointed out, the ground for the free movement of citizens is the European citizenship that, as per Arts 9 TEU and 20 TFEU, belongs to any national of a Member State. In this regard, the claim of Recital 37 – that the citizen enjoying the freedoms of the internal market should know in advance which law will apply to his/her succession – seems to favour nationality, rather than habitual residence, as the connecting factor. Indeed, nationality ensures more continuity and legal certainty than habitual residence. In this regard see Kindler (n 25) 253 f. On European citizenship see generally M Condinanzi, A Lang and B Nascimebene, Citizenship of the Union and Free Movement of Persons (Leiden, Martinus Nijhoff, 2008); E Triggiani (a cura di), Le nuove frontiere della cittadinanza europea (Bari, Cacucci editore, 2011); F Rossi dal Pozzo, Citizenship Rights and Freedom of Movement in the European Union (Alphen aan den Rijn, Kluwer Law International, 2013); and C Morviducci, I diritti dei cittadini europei (Torino, Giappichelli, 2017). 57 See Calvo Caravaca (n 30) 314. 58 Considering the flow of immigration of citizens of states adopting Islamic law for the regulation of a person’s succession, the adoption of habitual residence will prevent the abundant recourse to public policy by the authority of Member States. On Islamic succession law see SA Aldeeb and A Bonomi (eds), Le droit musulman de la famille et des successions à l’épreuve des ordres juridiques occidentaux (Zürich, Schulthess, 1999) 309 ff; R Kimber, ‘The Qurʾanic Law of Inheritance’ (1998) Islamic Law and Society 291. On the possible use of public policy with reference to Islamic law see I Blázquez Rodríguez, ‘El derecho sucesorio islámico: principios informadores y excepción de orden público internacional’ (2009) REDI 441. On the public policy exception, see also FC Villata, ‘Predictability First! Fraus Legis, Overriding Mandatory Rules and Ordre Public under EU Regulation 650/2012 on Succession Matters’ (2019) RDIPP 714, 729 ff. 59 See Damascelli (n 1) 48. 60 It is worth noting that the Succession Regulation does not establish any specific rule on whether the foreign applicable law is to be considered as a fact (thus to be proven by the parties) or as law (thus falling into the judge’s office) and how its content should be ascertained and interpreted. Therefore, these problems will be solved by each state’s national rules. On the matter see already O Kahn-Freund, ‘General problems of Private International Law’ (1974) 143 Recueil des Cours de l’Académie de Droit International 139, 422 ff; E Vitta, ‘Cours général de droit international privé’ (1979) 162 Recueil des Cours de l’Académie de Droit International 9, 73 ff; and more recently, with specific reference to EU Member State, C Esplugues Mota, JL Iglesias Buigues and G Palao Moreno (eds), Application of Foreign Law (Munich, Sellier European Law Publishers, 2011); Y Nishitani (ed), Treatment of Foreign Law – Dynamics towards Convergence? (Cham, Springer, 2017).

Habitual Residence in the Succession Regulation  147 habitual residence will ensure more equitable solutions and, where appropriate, faster procedures.61 Eventually, as repeatedly mentioned, habitual residence is adopted by all EU Private International Law Regulations both for jurisdiction and for applicable law.62 Thus, in addition to representing a typical element in this field of European Union law, the use of this connecting factor might allow some family planning for spouses with different citizenships, but residing in the same country. Indeed, since the default law applicable to matrimonial property regimes,63 as per the Matrimonial Property Regimes Regulation, will be, absent a choice of law, the law of the spouses’ first common habitual residence after the conclusion of the marriage (Article 26(1)(a)), and since the spouses can choose the law of the state where the spouses or future spouses, or one of them, is habitually resident at the time the agreement is concluded (Article 22(1)(a)), there might be some room for a favourable coincidence of the law applicable to the matrimonial property regime and the lex successionis.64 Things may be different for the economic consequences of a registered partnership, due to the fact that the objective connecting factor foreseen in Article 26 Regulation on the Property Consequences of Registered Partnerships is the state under whose law the registered partnership was created instead of the spouses’ (rectius, partners’) first common habitual residence.65 In any case, as it has been seen, if the family life presents a high degree of internationality, it may well be that the spouse’s (and partner’s) habitual residence is not located in the same country as the deceased’s habitual residence. On the other hand, habitual residence involves a degree of uncertainty in its determination, especially in cases with a high degree of dispersion of the relevant points of contact. From this standpoint, the criterion under examination may disregard the very same expectations of the European Union legislator, according to which, as per Recital 37, the succession must be governed by a law which is objectively applicable and foreseeable and with which it has close links. Moreover, since the deceased can transfer his habitual 61 As it has been pointed out, ‘[t]he judge who has to apply foreign law is always worse than the judge who is applying his own law. The judge applying foreign law is a dilettante, a beginner; he is timid. The judge applying the lex fori is a learned expert; he is a sovereign, superior judge’. See K Zweigert, ‘Some Reflections on the Sociological Dimensions of Private International Law or What is Justice in Conflict of Laws?’ (1972–1973) UColoR 283, 293. 62 In any case, one should always remember that the rules on jurisdiction and on applicable law answer to different necessities and goals; here suffice to underline that the determination of the deceased’s habitual residence follows the same paths both for ascertaining the judge’s jurisdiction and for applying the competent law. 63 On the law applicable to matrimonial property regimes and to the economic consequences of a registered partnership see P Lagarde, ‘Règlements 2016/1103 et 1104 du 24 juin 2016 sur les régimes matrimoniaux et sur le régime patrimonial des partenariats enregistrés’ (2016) RDIPP 676, 681 ff; D Damascelli, ‘La legge applicabile ai rapporti patrimoniali tra coniugi, uniti civilmente e conviventi di fatto nel diritto internazionale privato italiano ed europeo’ (2017) RDI 1103; D Coester-Waltjen, ‘Connecting Factors to Determine the Law Applicable to Matrimonial Property Regimes’ (2017/2018) YBPrIL 195; S Marino, I rapporti patrimoniali della famiglia nella cooperazione giudiziaria civile dell’Unione europea (Milano, Giuffrè Francis Lefebvre, 2019) 172 ff. 64 See Davì and Zanobetti (n 1) 43 and Calvo Caravaca (n 30) 313. 65 Of course, the Regulation on the Property Consequences of Registered Partnerships allows the partners to choose the law applicable to the economic consequences of their registered partnership. The choice is limited to a number of potential applicable laws. The only difference with the Matrimonial Property Regimes Regulation is that the registered partnership regulation adds the law of the state creating the partnership to the range of potential applicable laws. Accordingly, there will be coincidence between the lex successionis and the law applicable to the economic consequences of the registered partnership when the deceased was habitually resident in the state creating the partnership or when the partners chose the law of the partner/deceased’s habitual residence.

148  Jacopo Re residence to another country with relative ease, the criterion in question would have little effect on creating favourable conditions for succession planning.66 Nevertheless, the European Union legislator has adopted some corrective measures to temper these drawbacks. On the one hand, the party concerned has been granted the right to choose his own national law as the law applicable to his succession.67 On the other hand, the Succession Regulation ensures the continuity over time of dispositions of property upon death,68 by applying to them the so-called anticipated (or hypothetical) succession law – ie the law that would have been applicable to the succession, if the person died the day he made that disposition – for the admissibility and substantial validity of those dispositions. In this regard, the Succession Regulation tends to neutralise the effects of a possible different location of the deceased’s habitual residence after he made such a disposition.69 Furthermore, it should be analysed whether it is possible for an individual to have more than one habitual residence or no habitual residence at all under the Regulation.70 To my mind, a solution can only be found by taking into account the aim of the Regulation,71 its rules and its effects on the Private International Law of Members States. In this perspective, the Regulation provisions determining states’ jurisdiction and the applicable law prevail over domestic legislation.72 Accordingly, those provisions cannot be applied to cases falling under the scope of the Regulation. Moreover, the rules on the determination of jurisdiction and applicable law cannot be complemented by national provisions. Furthermore, the Succession Regulation, in the section dealing with the applicable law, does not adopt any subsidiary rule if, in a given succession, the

66 See A Bonomi, ‘Criterio generale (art. 21)’ in Bonomi and Wautelet, Il regolamento europeo sulle successioni 225, 229. 67 See Davì and Zanobetti (n 1) 45, according to whom the possibility to choose the law of the deceased’s nationality, combined with the objective connecting factor of habitual residence, is functional to the construction of a Private International Law system consistent with the purposes of the European judicial area. Indeed, the deceased can profit from the competition of the different legal orders – therefore displacing his/her habitual residence according to his/her need, and enjoying the most the freedom of movement – while, at the same, should this be the case, relying on his/her national law for the stability of the organisation of his/her succession. See also Carrascosa González (n 1) 150 f. On the European judicial area see for all JJ Kuipers, ‘European Union and Private International Law’ in J Basedow, G Rühl, F Ferrari and P de Miguel Asensio (eds), Encyclopedia of Private International Law 687. 68 As per Art 3(1)(d) disposition of property upon death means a will, a joint will or an agreement as to succession. On the classification of such dispositions see B Barel, ‘La disciplina dei patti successori’ in P Franzina and A Leandro (a cura di), Il diritto internazionale privato delle successioni mortis causa 103, 109 ff; É Fongaro, ‘L’anticipation successorale à l’épreuve du “règlement successions”’ (2014) JDI 477; A Bonomi and P Wautelet, ‘Definizioni (art. 3)’ in Bonomi and Wautelet, Il regolamento europeo sulle successioni 85, 88 ff; P Kindler, ‘La legge applicabile ai patti successori nel regolamento (UE) n. 650/2012’ (2017) RDIPP 12, 14 ff. 69 In other words, the deceased’s habitual residence is not always temporarily linked at the time of his/her death, but – in order to guarantee the continuity of a given succession planning – to the time of the disposition as well. For the time element of the conflict-of-laws rule, and its necessity in order to avoid the so-called conflit mobile, see PG Vallindas, ‘La structure de la règle de conflit’ (1960) 101 Recueil des Cours de l’Académie de Droit International 327, 363 ff. 70 See Carrascosa González (n 1) 157 f; Calvo Caravaca (n 30) 309 ff. 71 As per Recital 23, the deceased’s habitual residence should reveal a close and stable connection with the state concerned, ‘taking into account the specific aims of this Regulation’. 72 On primacy of European Union law over Member States’ law see for all M Claes, ‘Primacy and the National Reception’ in A Arnull and D Chalmers, The Oxford handbook of European Union law (Oxford, Oxford University Press, 2015) 178.

Habitual Residence in the Succession Regulation  149 deceased’s habitual residence leads to a dead end,73 nor does it adopt a functional rule on a dual habitual residence. To my mind, at least for the selection of the applicable law absent a choice of law, the legal practitioner is called upon to determine the deceased’s habitual residence in any case, using, if necessary, the tools set up in Recitals 23 and 24. Indeed, the same system implemented by the Regulation requires, in order to work properly, that the deceased’s habitual residence has to be identified. Accordingly, for the purposes of the Succession Regulation, everyone has a habitual residence.74 Moreover, everyone has only one habitual residence at time. This follows from the same principles set up before. The regulation does not establish any rule for the case that, under some circumstances, a person might be considered as habitually resident in two places. On the contrary, as already seen, the first part of Recital 24 gives some guidance in determining habitual residence when the life of a person is divided mainly between two countries. This implies that a person can only have one habitual residence at time. Conversely, nothing in the regulation, but a sound uniform interpretation of habitual residence, can prevent, in a situation in which a person lives between two Member States, the legal practitioners of each state considering the deceased to be habitually resident in their own state. This can lead to a positive conflict of jurisdiction, which may be tempered by the rules of the regulation relating to intra-EU cases of lis pendens.75 In the opinion of the author, it is up to the Court of Justice of the European Union, in its fundamental role of interpreter of European Union law, to further elaborate criteria to foster the autonomous interpretation of habitual residence. At the same time, in a situation as the one described, the national judge should be really cautious in declaring the state’s jurisdiction and should consider asking for the Court of Justice’s interpretation.

IV.  Closing Remarks Habitual residence is a personal, territorial and factual connecting factor, whose interpretation requires a functional and teleological approach to better pursue the objectives of the legal instrument adopting it. Determining the deceased’s habitual residence is essential in the economy of the Succession Regulation. This operation, as it has been seen, requires the legal practitioner to use a case-by-case approach. All the factual circumstances and interests of a person’s life – personal, family, social, economic and professional – must be duly identified and carefully grouped and weighted.

73 This is the terminology employed by W Wengler, ‘The general principles of Private International Law’ (1961) 104 Recueil des Cours de l’Académie de Droit International 273, 332 for the case that a connecting factor chosen by the legislator does not exist in the situation at stake. 74 See, accordingly, Opinion of Advocate General Campos Sánchez-Bordona in Case C-80/19 E. E. (n 27), paras 44 and 59. Moreover, in relation to the ‘modern nomads’ case, see Calvo Caravaca (n 30) 310 f. 75 See amplius, A Bonomi and R Di Iorio, ‘Litispendenza (art. 17)’ in Bonomi and Wautelet, Il regolamento europeo sulle successioni 197; F Marongiu Bonaiuti, ‘Article 17. Lis Pendens’ in Calvo Caravaca, Davì and Mansel (eds), The Succession Regulation 251; H Meidanis, ‘Article 17. Lis Pendens’ in Pamboukis (ed), EU Succession Regulation No 650/2012 186.

150  Jacopo Re In this perspective, the degree of internationality of a case has an impact on both the easiness of its determination and the strength of the connecting factor. Indeed, the determination of the deceased’s habitual residence is easier when the case presents a minimum or moderate degree of dispersion of the relevant connections; it becomes more complex when the succession case presents a high degree of internationality. As a consequence, the higher the degree of internationality, the greater the need to carefully assess and weigh up the relevant contacts. Moreover, habitual residence is the typical connecting factor of EU Private International Law Regulations in family and personal matters. On one hand, this might allow some family planning for spouses with different citizenship residing in the same country. On the other hand, in complex cases, when the family life is highly localised in different countries, the desired coherence might be thwarted due to different localisations of the same connecting factor for different aspects of the same situation. Indeed, each EU Private International Law Regulation has its own material and personal scope, with evident consequences on the selection of the relevant personal and spatial connection of the situation under examination. Additionally, habitual residence referss not only to a single person (the child, the deceased) but also to a couple (the spouses). This implies that the habitual residence of a given person, such as the deceased spouse, may be localised in different countries for different causes of action. The Succession Regulation aims at regulating any Private International Law aspect of cross-border succession. At its heart lies the deceased’s habitual residence. Only an autonomous interpretation can pursue the achievements of its goals. In dubious localisation, it would be appropriate for a national authority to ask for a preliminary ruling from the Court of Justice of the European Union, whose everyday work is fundamental for the construction of the European judicial area.

13 Multiple Nationalities and EU Family Regulations* STEFANIA BARIATTI

I.  Preliminary Remarks At the very beginning of EU activity in the field of conflicts of laws, albeit indirectly through the Brussels Convention, no role was given to nationality as a jurisdictional criterion, since the principle ‘no discrimination based on nationality’ was a very strong and undisputed dogma of Community law. In the field of family relationships, at that time, only jurisdiction in matters of maintenance was regulated: Article 5(2) of the Convention provided for a special forum in the Member State of the domicile or habitual residence of the maintenance creditor, which concurred with the general forum of the domicile of the defendant (usually the maintenance debtor).1 The first Accession Convention of 1978 modified Article 5(2) in order to include the forum of the ancillary claim concerning the status of a person, but it provided that nationality was not a viable jurisdictional criterion for purposes of the maintenance claim, unless it was accompanied by other – albeit undefined – elements.2 When negotiating the Brussels II Convention, however, the Member States had to acknowledge that nationality deserved to play a role in family matters, at least as an additional criterion. Indeed, Article 3 of that Convention, which became Article 3(1) of the Brussels II Regulation and later Article 3(1) of the Brussels IIa Regulation, provides that ‘in matters relating to divorce, legal separation or marriage annulment, jurisdiction shall lie with the courts of the Member State … (b) of the nationality of both spouses’. * Several issues addressed in this contribution have been analysed in S Bariatti, ‘Multiple Nationalities and EU Private International Law. Many Questions and Some Tentative Answers’ (2011) XIII Yearbook of Private International Law, 1 ff. 1 Other provisions applied, eg Arts 6, 17 and 18, but for the purposes of this contribution only Art 5(2) will be taken into consideration. This provision covered all types of maintenance obligations, including when due outside family relationships (Report by Professor Dr Peter Schlosser on the Convention of 9 October 1978 on the Association of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland to the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters and to the Protocol on its interpretation by the Court of Justice [1979] OJ C59/71 §§ 91 ff). 2 Schlosser Report (n 1) §§ 32 ff. This rule is now included in the general provision on jurisdiction at Art 3(c) and (d) of the Maintenance Regulation.

152  Stefania Bariatti Since then, nationality has been utilised as a jurisdictional criterion or connecting factor in all EU Regulations concerning family or succession matters. The nationality of one person or the nationality of both parties is taken into consideration, depending upon the legal situation or relationship. This choice has brought to the foreground the issue of determining the nationality of the persons involved, and in particular the assessment and the solution to be adopted in case of multiple nationalities. Apart from a few rules that provide a clear-cut solution, some guidance may be found in the recitals to the Regulations and in the case law of the CJEU, but several questions remain unanswered. Moreover, as far as the recitals are concerned, it is worth mentioning that in all the Regulations except one – the Succession Regulation – guidance is provided only in respect to nationality as a connecting factor, not as a jurisdictional criterion, and that such guidance merely leaves the issue to national law, including international conventions, where applicable, ‘in full observance of the general principles’ of the European Union. Indeed, according to Recital 22 of the Rome III Regulation, ‘[w]here this Regulation refers to nationality as a connecting factor for the application of the law of a State, the question of how to deal with cases of multiple nationality should be left to national law, in full observance of the general principles of the European Union’. Recital 50 of the Matrimonial Property Regimes Regulation and Recital 49 of the Regulation on the Property Consequences of Registered Partnerships provide that: Where this Regulation refers to nationality as a connecting factor, the question of how to consider a person having multiple nationalities is a preliminary question which falls outside the scope of this Regulation and should be left to national law, including, where applicable, international Conventions, in full observance of the general principles of the Union. This consideration should have no effect on the validity of a choice of law made in accordance with this Regulation.

Recital 41 of the Succession Regulation, on the contrary, provides the same type of clarification for both the rules on jurisdiction and the rules on the applicable law of the Regulation (‘[f]or the purposes of the application of this Regulation’). Furthermore: … the determination of the nationality or the multiple nationalities of a person should be resolved as a preliminary question. The issue of considering a person as a national of a State falls outside the scope of this Regulation and is subject to national law, including, where applicable, international Conventions, in full observance of the general principles of the European Union.3

II.  The Common Nationality of the Parties as a Jurisdiction Criterion As far as jurisdiction is concerned, the common nationality of the parties to the relevant relationship is utilised as an additional criterion in Article 3(1)(b) of the Brussels IIa Regulation, mentioned above, and as a subsidiary criterion in Article 6 of the 3 The Brussels IIa Regulation, which contains no rules on the applicable law, does not provide guidance on this matter.

Multiple Nationalities and EU Family Regulations  153 Maintenance Regulation, and in Article 6(d) of the Matrimonial Property Regimes Regulation and Regulation on the Property Consequences of Registered Partnerships. If the parties have more than one nationality in common, guidance may be found in the Hadadi judgment of the CJEU, which concerned the recognition in France of a Hungarian divorce of a couple holding both Hungarian and French nationalities.4 The CJEU held that Article 3(1) of the Brussels IIa Regulation ‘does not make any express reference to the law of the Member States for the purpose of determining the exact scope of the “nationality” ground of jurisdiction …’. Also, the Regulation: … does not appear, at least in principle, to make a distinction according to whether a person holds one or, as the case may be, several nationalities. Accordingly, where the spouses have the same dual nationality, the court seised cannot overlook the fact that the individuals concerned hold the nationality of another Member State, with the result that persons with the same dual nationality are treated as if they had only the nationality of the Member State of the court seised. That would have the effect of precluding such persons, in the context of the transitional rule of recognition referred to in Article 64(4) of Regulation No 2201/2003, from relying on Article 3(1)(b) of that regulation before a court of the Member State addressed in order to establish the jurisdiction of the courts of another Member State, even though those persons hold the nationality of the latter State. On the contrary, in the context of Article 64(4) of the regulation, where the spouses hold both the nationality of the Member State of the court seised and that of the same other Member State, that court must take into account the fact that the courts of that other Member State could, since the persons concerned hold the nationality of the latter State, properly have been seised of the case under Article 3(1)(b) of Regulation No 2201/2003. Consequently, … where the court of the Member State addressed must verify, pursuant to Article 64(4) of Regulation No 2201/2003, whether the court of the Member State of origin of a judgment would have had jurisdiction under Article 3(1)(b) of that regulation, the latter provision precludes the court of the Member State addressed from regarding spouses who each hold the nationality both of that State and of the Member State of origin as nationals only of the Member State addressed. That court must, on the contrary, take into account the fact that the spouses also hold the nationality of the Member State of origin and that, therefore, the courts of the latter could have had jurisdiction to hear the case.

The CJEU also rejected the argument that the concept of effective nationality should apply in this type of case.5 According to the Court, the system of jurisdiction established by the Brussels IIa Regulation: … is not intended to preclude the courts of several States from having jurisdiction. Rather, the coexistence of several courts having jurisdiction is expressly provided for, without any hierarchy being established between them … [T]here is nothing in the wording of Article 3(1)(b) to suggest that only the ‘effective’ nationality can be taken into account in applying that provision. Article 3(1)(b), inasmuch as it makes nationality a ground of jurisdiction, endorses a link that is unambiguous and easy to apply. It does not provide for any other criterion relating to nationality such as, for example, how effective it is. … First, such an interpretation would restrict individuals’ choice of the court having jurisdiction, particularly in cases where the right to freedom of movement for persons had been exercised. … Secondly, in the light of the imprecise nature of the concept of ‘effective nationality’, a whole set of factors 4 Case C-168/08 Laszlo Hadadi (Hadady) v Csilla Marta Mesko, épouse Hadadi (Hadady) [2009] ECR I-06871, ECLI:EU:C:2009:474. 5 At least when the nationalities of two or more Member States are involved.

154  Stefania Bariatti would have to be taken into consideration, not always leading to a clear result. The need to check the links between the spouses and their respective nationalities would make verification of jurisdiction more onerous and thus be at odds with the objective of facilitating the application of Regulation No 2201/2003 by the use of a simple and unambiguous connecting factor. … [W]here spouses each hold the nationality of the same two Member States, Article 3(1)(b) of Regulation No 2201/2003 precludes the jurisdiction of the courts of one of those Member States from being rejected on the ground that the applicant does not put forward other links with that State. On the contrary, the courts of those Member States of which the spouses hold the nationality have jurisdiction under that provision and the spouses may seise the court of the Member State of their choice.

Four lessons may be drawn from this judgment as far as the Brussels IIa Regulation is concerned. First, the nationalities of the Member States are equal, as has been established by the CJEU in many previous cases concerning free movement. Second, effective nationality does not prevail, at least when the nationalities of two or more Member States are involved. Third, Article 3 of the Regulation does not refer to national laws for determining the notion of nationality in cases of multiple nationalities. And fourth, the Brussels IIa Regulation does not exclude multiple fora when the assertion of jurisdiction is based on the nationality of the spouses. The first three lessons apparently apply directly to the Matrimonial Property Regimes Regulation and the Regulation on the Property Consequences of Registered Partnerships. The fourth lesson may apply to them as well, but one has to bear in mind that Article 6(d) of these Regulations utilises the common nationality of the spouses or partners only as a subsidiary criterion of jurisdiction, which does not concur with any other criteria. Thus, multiple fora may be established only when the parties have two or more nationalities in common. One should resist the temptation when determining jurisdiction to extend the rule in Article 26(2) of the Matrimonial Property Regimes Regulation, which dictates the applicable law in case of multiple common nationalities, ie that none of them may be taken into account. These lessons do not apply directly in cases where the nationality of one or more Member States concurs with the nationality of any non-EU country or countries, since for purposes of distributing jurisdiction among the Member States the nationality of non-EU countries is irrelevant. In particular, the court of a Member State of which a couple holds the nationality that is seised on the basis of its domestic procedural law under Article 7 of the Brussels IIa Regulation does not have to take into consideration the nationality of a third country that the couple also holds. The exception to this rule may be when the latter nationality is the effective nationality and under such domestic law the effective nationality prevails even over the nationality of the forum.

III.  The Nationality of One Individual as a Jurisdiction Criterion No Regulation utilises the nationality of one individual alone as the relevant jurisdiction criterion, but some of them take it into account as a subsidiary or additional factor for establishing the jurisdiction of the courts of a Member State. For example, according to

Multiple Nationalities and EU Family Regulations  155 Article 12(3)(a) of the Brussels IIa Regulation, the nationality of the child is an element that may prove a substantial connection to a Member State in matters of parental responsibility, but the jurisdiction of such a Member State must be accepted by all the parties to the proceedings and must be in the best interest of the child. Article 10(1)(a) of the Succession Regulation vests the courts of the Member State of the nationality of the deceased with jurisdiction where the habitual residence of the deceased at the time of death is not located in a Member State, but only if assets of the estate are located in such Member State.6 Under Article 4 of the Maintenance Regulation, the parties may choose the courts of a Member State if one of them is the nationality of a party, ie, nationality concurs with the will of the parties in order to confer jurisdiction. Nationality suffices only in the exceptional situation regulated by Article 7 of the Maintenance Regulation. This Article provides for a forum necessitatis rule in order to avoid denial of justice where no court of a Member State has jurisdiction pursuant to Articles 3, 4, 5 and 6 and ‘proceedings cannot reasonably be brought or conducted or would be impossible in a third State with which the dispute is closely connected’. The dispute, however, must have a sufficient connection with the Member State of the court seised, ‘for instance the nationality of one of the parties’ (Recital 16). Taking into consideration the Hadadi judgment of the CJEU, one may argue that these rules do not exclude multiple fora when the person in question holds the nationality of more than one Member State, that are placed on the same footing: each Member State has jurisdiction insofar as the other elements and/or conditions required by the rule are respected. Effective nationality does not prevail for purposes of applying Article 10(1)(a) of the Succession Regulation, while the notion of ‘substantial connection’ in Article 12(3)(a) of the Brussels IIa Regulation requires an effective or genuine link between the child and the Member State. Yet, nationality is just one of the many elements that may come into consideration and it might give way to others. The same arguments that have been discussed above with reference to the combination of the nationality/ies of Member States and third countries apply also where the jurisdiction criterion refers to the nationality of one individual. It is worth mentioning the 1996 Hague Convention on the Protection of Children – to which all EU Member States are a party – and the 2005 Hague Convention on the Protection of Adults – which binds some EU Member States and the ratification of which has been strongly suggested by the EU institutions. Both Conventions provide at Article 8(2)(a) that the authority of a Contracting State having jurisdiction under Article 5 or 6 (ie, of the country of the habitual residence of the child or adult in question, respectively), if it considers that the authority of another Contracting State would be better placed in the particular case to assess the best interests of the child, may either request that other authority to assume jurisdiction to take such measures of protection as it considers to be necessary, or suspend consideration of the case and invite the parties to introduce such a request before the authority of that other State. The authorities that 6 Moreover, in this Regulation nationality may play a role in order to determine the habitual residence of the deceased in ‘complex cases’, ie, ‘where the deceased lived in several States alternately or travelled from one State to another without settling permanently in any of them. If the deceased was a national of one of those States …, his nationality … could be a special factor in the overall assessment of all the factual circumstances’ (Recital 24).

156  Stefania Bariatti may be addressed are those of ‘a State of which the child or the adult is a national’, which in case of multiple nationalities should be interpreted as any of the states of which the individual is a national.

IV.  Nationality as a Connecting Factor Issues are more complicated with regard to the applicable law. Some Regulations allow the parties to a relationship to choose the law of the state of the nationality of one of them,7 or allow the individual concerned to choose the law of the state of which he or she is a national.8 Examples of the former option are Articles 5(1)(c) of the Rome III Regulation9 and Article 22(1)(b) of the Matrimonial Property Regimes Regulation10 and Regulation on the Property Consequences of Registered Partnerships.11 In this category falls also Article 8(1)(a) of the 2007 Hague Maintenance Protocol, which binds some Member States and is referred to at Article 15 of the Maintenance Regulation in order to determine the applicable law to maintenance obligations when the courts of such Member States are competent according to the Regulation.12 The only example of the latter option is Article 22(1)(1) of the Succession Regulation.13 As mentioned before, some recitals to the Regulations provide limited guidance on the issue of multiple nationality where their provisions refer to nationality as a 7 This option obviously includes the situation where the parties have one or more common nationalities. 8 The right to choose the law of the nationality of one of the parties – the policy holder – is also granted to the parties to a life insurance contract under Art 7(3)(c) of the Rome I Regulation. The issues that arise if the policy holder has more than one nationality are the same as those that arise in the field of family relationships. 9 ‘The spouses may agree to designate the law applicable to divorce and legal separation provided that it is one of the following laws: … (c) the law of the State of nationality of either spouse at the time the agreement is concluded.’ 10 ‘The spouses or future spouses may agree to designate, or to change, the law applicable to their matrimonial property regime, provided that that law is one of the following: … (b) the law of a State of nationality of either spouse or future spouse at the time the agreement is concluded.’ 11 ‘The partners or future partners may agree to designate or to change the law applicable to the property consequences of their registered partnership, provided that that law attaches property consequences to the institution of the registered partnership and that that law is one of the following: … (b) the law of a State of nationality of either partner or future partner at the time the agreement is concluded.’ 12 ‘Notwithstanding Articles 3 to 6, the maintenance creditor and debtor may at any time designate one of the following laws as applicable to a maintenance obligation – a) the law of any State of which either party is a national at the time of the designation ….’ 13 ‘A person may choose as the law to govern his succession as a whole the law of the State whose nationality he possesses at the time of making the choice or at the time of death.’ According to Art 24(2) the person may choose the same law to govern his disposition of property upon death, as regards its admissibility and substantive validity. The same solution is adopted for the admissibility, the substantive validity and the binding effects between the parties, including the conditions for the dissolution, of their agreement as to succession under Art 25(3). It is worth mentioning that Art 15 of the 2005 Hague Convention on the Protection of Adults, mentioned at para III, provides that ‘(1) The existence, extent, modification and extinction of powers of representation granted by an adult, either under an agreement or by a unilateral act, to be exercised when such adult is not in a position to protect his or her interests, are governed by the law of the State of the adult’s habitual residence at the time of the agreement or act, unless one of the laws mentioned in paragraph 2 has been designated expressly in writing. (2) The States whose laws may be designated are – a) a State of which the adult is a national …’. This provision should be interpreted as allowing the individual to choose the law of any country of which he or she is a national.

Multiple Nationalities and EU Family Regulations  157 connecting factor. The wording is not uniform, though. Indeed, according to Recital 22 of the Rome III Regulation, ‘[w]here this Regulation refers to nationality as a connecting factor for the application of the law of a State, the question of how to deal with cases of multiple nationality should be left to national law, in full observance of the general principles of the European Union’. Recital 50 of the Matrimonial Property Regimes Regulation and Recital 49 of the Regulation on the Property Consequences of Registered Partnerships provide that: Where this Regulation refers to nationality as a connecting factor, the question of how to consider a person having multiple nationalities is a preliminary question which falls outside the scope of this Regulation and should be left to national law, including, where applicable, international Conventions, in full observance of the general principles of the Union. This consideration should have no effect on the validity of a choice of law made in accordance with this Regulation.

Recital 41 of the Succession Regulation, meanwhile, provides the same clarification ‘[f]or the purposes of the application of this Regulation’, ie for both the rules on jurisdiction and the rules on the applicable law of the Regulation.14 The different wording might lead to the conclusion that not only the determination of the nationality/ies that the individual possesses should take place according to the laws of the countries in question, but also that the question of if and how one nationality should prevail over the others in cases of multiple nationalities should be answered according to the national law (in this case, the law of the forum). However, the reference to international conventions and to the principles of EU law suggests a different answer. While the solution to the former issue has to be found in the domestic provisions of the law of each country of which the individual is a citizen, the answer to the latter may be found in the general principles of EU law and in the texts of the international conventions to which the forum Member State is a party. A different solution would lead to a lack of uniformity in the Member States on this issue, which would be disruptive for the application of these Regulations. The fact that the Rome III Regulation does not mention international conventions is not relevant, since the respect of international obligations is a general rule of public international law as well as a general principle of EU law, to which the Union as a whole abides. Starting with international conventions, Article 8(1)(a) of the 2007 Hague Maintenance Protocol should be interpreted as allowing the parties to choose the law of any of the countries of which the parties are nationals.15 The same solution is expressly provided at Article 22(1)(2) of the Succession Regulation, where it is stated that 14 ‘The determination of the nationality or the multiple nationalities of a person should be resolved as a preliminary question. The issue of considering a person as a national of a State falls outside the scope of this Regulation and is subject to national law, including, where applicable, international Conventions, in full observance of the general principles of the European Union.’ 15 A Bonomi, Explanatory Report on the Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations, § 131: ‘In the event of plurality of nationalities, given that the Protocol is silent on the matter, it should be accepted that the choice may relate to any of the national laws of the parties: determination of the closest or most effective nationality would risk creating uncertainty as to the validity of the choice, thus weakening party autonomy’. The Report states at §§ 76 and 106 that the primacy of the nationality of the forum and the principle of effective nationality should be rejected since they would undermine the uniform application of the Protocol.

158  Stefania Bariatti ‘[a] person possessing multiple nationalities may choose the law of any of the States whose nationality he possesses at the time of making the choice or at the time of death’.16 It is worth underlining that this provision does not grant primacy either to the effective nationality or to the nationality of a Member State vis-à-vis the nationality of non-EU countries. One may argue that this solution expresses a general principle of the EU that should come into consideration also when applying the other Regulations in cases where the individual or the parties may choose the law of the country of nationality. Indeed, when the individual or the parties have more than one nationality in common, and such nationalities are those of Member States, no discrimination among them may occur, as indicated several times by the Court of Justice.17 But this solution should also apply when the nationalities in question are those of non-EU countries. In fact, the EU choice-of-law rules enjoy universal application, ie they apply even when the law designated by them is the law of a non-Member State. Lacking any explicit contrary provision, any other solution would undermine the principle of equality of the laws designated by choice-of-law rules. This principle is a well-known and established principle of Private International Law, from which the EU provisions apparently do not deviate. Consequently, all nationalities of the spouses are placed on the same footing.18 The Regulations on family matters also provide a few other rules concerning the applicable law that utilise nationality as a connecting factor. Some of them aim at designating the applicable law when the parties have not made an express choice, some utilise the nationality as a connecting factor to determine the law applicable to the form of a deed,19 or to protect the maintenance creditor or in a special rule on defence. Article 8(c) of the Rome III Regulation provides that ‘[i]n the absence of a choice pursuant to Article 5, divorce and legal separation shall be subject to the law of the State: … (c) of which both spouses are nationals at the time the court is seized’. Article 26(1)(b) of the Matrimonial Property Regimes Regulation provides that ‘[i]n the absence of a choiceof-law agreement pursuant to Article 22, the law applicable to the matrimonial property regime shall be the law of the State: … (b) of the spouses’ common nationality at the time of the conclusion of the marriage’. Article 1 of the 1961 Hague Convention on Form of Testamentary Disposition, to which Recital 52 of the Succession Regulation refers for the Member States that have ratified it, provides that according to Article 1(1)(b) of the Convention, the formal validity of a will may be governed ‘by the law of a nationality of

16 The equal status of all the nationalities is confirmed at Art 83(3) of the same Regulation, where it states ‘[a] disposition of property upon death made prior to 17 August 2015 shall be admissible and valid in substantive terms and as regards form if … it is admissible and valid in substantive terms and as regards form in application of the rules of private international law which were in force, at the time the disposition was made, … in any of the States whose nationality he possessed’. 17 See the cases mentioned in Bariatti, ‘Multiple Nationalities and EU Private International Law’. 18 The only exception so far is provided at Article 7(3)(c) of the Rome I Regulation, which explicitly restricts the choice of the parties to the law of the Member State of nationality of the policy holder. In this case, if the policy holder possesses the nationality of two or more Member States, the parties to the contract may choose any of them, while if the policy holder possesses the nationality of one Member State and of one or more non-EU countries, only the former may be chosen. Finally, if the policy holder has only the nationality of non-EU countries, this option is not available to the parties. 19 The rules contained in the Succession Regulation have been referred to previously (fn 13, 16) and follow the same reasoning and solution.

Multiple Nationalities and EU Family Regulations  159 the testator, either at the time when he made the disposition, or at the time of his death’. Article 4(4) of the 2007 Hague Maintenance Protocol provides that ‘[i]f the creditor is unable, by virtue of the laws referred to in Article 3 and paragraphs 2 and 3 of this Article, to obtain maintenance from the debtor, the law of the State of their common nationality, if there is one, shall apply’. Also, under Article 6 of the same Protocol: In the case of maintenance obligations other than those arising from a parent-child relationship towards a child and those referred to in Article 5, the debtor may contest a claim from the creditor on the ground that there is no such obligation under both the law of the State of the habitual residence of the debtor and the law of the State of the common nationality of the parties, if there is one.

All these provisions, except one, offer a direct solution to the issue of multiple nationality. In particular, as far as the Matrimonial Property Regimes Regulation is concerned, Article. 26(1)(b) does not apply if the spouses have more than one common nationality at the time of the conclusion of the marriage (Article 26(2)). On the contrary, the rules of the Hague Conventions allow courts to take into consideration any nationality the individual possesses. This is due to the favour given to the formal validity of the will in the 1961 Convention, to the favour given to creditors in Article 4(4) of the 2007 Hague Maintenance Protocol,20 and the disfavour given to any objection to the existence of the right to maintenance in Article 6.21 In these cases, where the rationale of a choice-of-law provision aims at achieving a specific result and provides for the application of the national law of an individual, the law of any countries of which he or she is a national may apply in order to achieve that result. Only Article 8(c) of the Rome III Regulation does not provide any answer to the court that has to determine the prevailing common nationality of the spouses in the event they did not choose the applicable law. How should it proceed? Let us suppose that the spouses possess the nationality of two Member States, one of which is the forum state that has been seised for divorce pursuant to Article 3(1)(b) of the Brussels IIa Regulation (and on the basis of the interpretation of Hadadi). And let us suppose further that the connecting factors of Article 8(a) and (b) of the Rome III

20 Bonomi Report (n 15) § 76: ‘The Protocol does not provide for the case of multiple nationalities; the creditor and debtor, or both, may have two or more. The methods generally used to resolve these cases in the private international law of States are not suited for use pursuant to the Protocol. Indeed, the priority conferred by certain States on the nationality of the forum leads to results that are hardly uniform. As for determination of the closest or most effective nationality, it contains a considerable margin for uncertainty and it, too, may lead to divergent results between Contracting States. Favor creditoris, which is the basis of Article 4(4), ought rather to lead to application of the law of common nationality in all cases where it exists, even if that nationality is not, for one or other of the parties, the closest or most effective. The same considerations ought to apply when the parties share several nationalities, with the result that the creditor’s claim may be admitted on the basis of one or other of those laws of common nationality’. 21 Bonomi Report (n 15) §§ 106–07: ‘it seems preferable for the common nationality to be taken into account in any event, even if it is not the most effective for one of the parties. This solution is more favourable to the maintenance creditor, as it makes the use of the defence under Article 6 more difficult. This is accordingly a solution consistent with the general spirit of the Protocol (favor creditoris), and with the characteristic of exceptional rule attributed to Article 6. Nor does Article 6 specify which solution is to be applied when the parties have several nationalities in common. Having regard to the teleological and systematic arguments we have just mentioned, the most appropriate solution is to take into account all the common national laws, and to accept the debtor’s defence only if none of them provides for the maintenance obligation.’

160  Stefania Bariatti Regulation do not apply. It is obvious that while two or more courts may be competent under Hadadi, only one law can decide the case. In this situation, Hadadi does not seem to prevent the Member State of the forum from applying its national law as the law of one of the common nationalities of the couple under Article 8(c) of the Regulation, irrespective of any genuine link between the spouses and its territory. Indeed, it would appear unreasonable that one or both spouses seise the court of a Member State on the basis of the nationality they have in common and then the court applies the law of the Member State of another common nationality in order to respect Micheletti22 and grant equal treatment to the nationality of the other Member State. Moreover, this case is neutral in respect to the solution adopted in Article 26(2) of Matrimonial Property Regimes Regulation: should the common nationalities be disregarded as connecting factors, in our example the lex fori would nevertheless apply pursuant to Article 8(d) of the Rome III Regulation. This issue becomes relevant where the spouses possess the nationalities of two Member States other than the forum state, whose court has been seised – for example – as the court of the residence of the respondent pursuant to Article 3(1)(a) third indent of the Brussels IIa Regulation. The CJEU case law suggests that no genuine link of the couple with one of the countries of their common nationalities could be requested in order to determine the law applicable to divorce. Thus, the solution adopted in the Matrimonial Property Regulation seems to be the only reasonable and clear-cut solution. No conflicts between the competing nationalities would arise and the lex fori would apply pursuant to Article 8(d) of the Rome III Regulation. This solution would also be consistent with the rationale of this latter provision, which grants the spouses the right to choose the applicable law: the parties may actually choose any nationalities they possess, and even the nationality of only one spouse, but if they do not choose, the court may not interfere and may not decide ex officio which common nationality prevails. In both cases, the common nationality of a non-EU country would never prevail due to the interplay between the rules on jurisdiction and on the applicable law. In the former case, the common nationality would not prevail since it would appear unreasonable that one or both spouses seise the court of a Member State on the basis of the nationality of a Member State they have in common and for the court to then apply the law of a non-Member State of another common nationality. In the latter case, the common nationality of a non-EU country would not prevail either, since no common nationality of any country would prevail.

22 Case C-369/90 Mario Vicente Micheletti and others v Delegación del Gobierno en Cantabria [1992] ECR I-04239, ECLI:EU:C:1992:295.

part iv Jurisdiction and Parallel Proceedings

162

14 Jurisdiction* ARANTXA GANDÍA SELLENS, AMANDINE FAUCON ALONSO AND PHILIPPOS SIAPLAOURAS

I. Introduction Article 67(1) of the Treaty on the Functioning of the European Union (TFEU)1 contains the programmatic declaration that the EU ‘shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States’. With regard to civil procedure, paragraph 4 further declares that the EU ‘shall facilitate access to justice, in particular through the principle of mutual recognition of judicial and extrajudicial decisions in civil matters’. These provisions set the overall characteristics of the EU’s legislative involvement in civil procedure: the keywords are access to justice and mutual recognition, along with respect of fundamental rights and respect of the traditions of Member States. Furthermore, Article 81(1) TFEU stipulates that the EU ‘shall develop judicial cooperation in civil matters having cross-border implications, based on the principle of mutual recognition of judgments and of decisions in extrajudicial cases’, followed by a list of specific areas of competence.2 A special paragraph is devoted to family law (paragraph 3). The area of freedom, security and justice (AFSJ) has an emphatic presence not only in the opening recitals of family law or succession instruments: the central instrument in EU civil procedure, Brussels Ia,3 also repeats the objective. The European Court of Justice (CJEU) has also noted that the objective of an AFSJ had given the Community ‘a new dimension’.4 These occurrences may be indicative of how the AFSJ is perceived as

* The Conclusion and section concerning the Brussels IIa Regulation are to be attributed to A Gandia Sellens; section concerning the Maintenance Regulation is to be attributed to A Faucon Alonso and the Introduction and section concerning the Succession Regulation are to be attributed to P Siaplaouras. The authors would like to thank Professor Dr Dres. h.c. Burkhard Hess and Professor Dr Marta Requejo Isidro for their constructive criticism of the manuscript. Naturally, responsibility for any wrong interpretations, errors or omissions lies solely with the authors. The text was correct as of October 2018. 1 Consolidated version of the Treaty on the Functioning of the European Union [2012] OJ C326/47. 2 On the EU’s genuine competence in civil procedure see B Hess, ‘The State of the Civil Justice Union’ in B Hess et al (eds), EU Civil Justice: Current Issues and Future Outlook (Oxford, Hart Publishing, 2016) 1. 3 Recital 3. 4 Case C-443/03 Götz Leffler v Berlin Chemie AG [2005] ECR I-9611, ECLI:EU:C:2005:665 para 45.

164  Arantxa Gandía Sellens, Amandine Faucon Alonso and Philippos Siaplaouras the basic constitutional framework which encompasses the various legislative initiatives as regards European civil procedure.5 The AFSJ, as provided for in the TFEU, signifies an emancipation of the concept from the needs of the internal market.6 The AFSJ is currently perceived as an independent area of policy which aims to facilitate the movement of people within the EU – legislative initiatives no longer need to be taken ‘in so far as necessary for the proper functioning of the internal market’ as Article 65 of the Treaty establishing the European Community (TEC)7 stipulated. Judicial cooperation to facilitate the free movement of Union citizens is, therefore, an independent and separate objective under the AFSJ within the current framework of the EU treaties. Mutual recognition (Article 81(1) TFEU) and access to justice (Article 67(4) TFEU) constitute the two main underlying principles of the EU’s competences in matters of judicial cooperation in civil matters.8 Both concepts are implemented by the common rules on jurisdiction. On the one hand, access to justice is guaranteed by providing clear jurisdictional bases for the parties.9 On the other hand, having common jurisdictional rules and trusting that the Member States will apply them are essential for facilitating free circulation of judgments.10 However, while these conclusions may be correct and the constitutional importance of the AFSJ correctly assessed, no concrete and direct overarching principles seem to be deducible which would bind the legislator in shaping the grounds for jurisdiction, which are actually quite diverse.11 The overall regulation of jurisdiction in the EU instruments follows the old continental rule12 of actor sequitur forum rei, as shown by Article 4 Brussels Ibis, Article 3(a) third indent Brussels IIa and Article 3(b) Maintenance Regulation, complemented of course with numerous exceptions and additions. Actor sequitur forum rei is an expression of a more general principle of procedural fairness, ie of the fundamental basic protection for the defendant (‘favor defensoris’) who is exposed to an attack by the plaintiff.13 In the words of the Court, this principle ‘serves as a counterpoise to the facilities provided by the Convention with regard to the recognition and enforcement of foreign judgments’.14 Moreover, forum rei constitutes a rejection of forum actoris; only 5 cf M Kotzur, ‘Art. 67 AEUV’ in R Geiger et al (eds), EUV-AEUV, 6th edn (Munich, CH Beck, 2017) para 2, who uses the term ‘Verfassungsraum’. 6 Recitals 4, 12 and Art 3(2) of TEU; PC Müller-Graff, ‘Artikel 67 AEUV’ in M Pechstein et al (eds), Frankfurter Kommentar zu EUV, GRC und AEUV (Tübingen, Mohr Siebeck, 2017) para 3. 7 Consolidated version of the Treaty establishing the European Community [2002] OJ C325/33. 8 B Hess, ‘Art. 81 AEUV’ in E Grabitz et al (eds), Das Recht der Europäischen Union (Munich, CH Beck, 2010) para 31. 9 T Pfeiffer, Internationale Zuständigkeit und Prozessuale Gerechtigkeit (Frankfurt, Vittorio Klostermann, 1995) 362–64. 10 P Jenard, ‘Report on the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters (signed at Brussels, 27 September 1968)’ [1979] OJ C59/1, 7, Recital 6 Brussels Ia Regulation. 11 This, of course, does not preclude a resort to the AFSJ aims and goals as a hermeneutic aid when the textual interpretation of the instruments leaves space for multiple interpretative pathways. 12 See C Chainais, F Ferrand and S Guinchard, Procédure Civile, 33rd edn (Paris, Dalloz, 2016) para 1523: ‘Cette règle est traditionelle. Elle existait dans le droit romain, dans le droit canonique, dans le droit coutumier’. 13 Jenard, ‘Report’ 18; A Dickinson, ‘Background and Introduction to the Regulation’ in A Dickinson and E Lein (eds), The Brussels I Regulation Recast (Oxford, Oxford University Press, 2015) para 1.60; J Pontier and E Burg, EU Principles on Jurisdiction and Recognition and Enforcement of Judgments in Civil and Commercial Matters (The Hague, T.M.C. Asser Press, 2004) 55–57, 118–24; with regard to internal jurisdiction, see eg M Schultzky, ‘§ 12’ in Zöller Zivilprozessordnung, 32nd edn (Cologne, Otto Schmidt, 2016) para 2. 14 Case 220/84 AS-Autoteile Service GmbH v Pierre Malhé [1985] ECR 2267, EU:C:1985:302 para 15.

Jurisdiction  165 insofar as there is a concrete jurisdictional basis provided for another forum may the plaintiff deviate from the rule.15 The other jurisdictional bases provided for are understood as exceptions to the general rule. It is evident that actor sequitur forum rei primarily addresses access to justice for the defendant since it establishes a familiar and close forum for the defendant.16 In the subsystem of jurisdiction in family and succession matters, however, actor sequitur forum rei does not prevail.17 Other principles lie behind the jurisdictional rules of the Regulations in question here, such as the interest of the child,18 protection of the weaker party19 and securing harmony of forum and ius.20 The Succession Regulation does not know forum rei at all. Whereas these principles have in common that they do not emanate from procedural law, no single general principle governs the jurisdictional rules of Brussels IIa, the Maintenance and Succession Regulations. The departure from forum rei is not unexpected either, since protection of the defendant is neither the only nor the ultimate principle behind the jurisdictional order.21 Even when jurisdiction according to the rule is provided (eg Article 3(a) third indent Brussels IIa or Article 3(b) Maintenance Regulation), there is an essential difference compared to Brussels Ia: it is not meant to exclude forum actoris, but rather constitutes one of many other possible fora available for the plaintiff. Proximity to the case, protection of the weaker party22 and the child’s best interests are more appropriate where sensitive personal relationships are concerned.23 For these Regulations, substantive concerns prevail over procedural ones, even if jurisdiction is of procedural nature. In that sense, access to justice, as an objective of the AFSJ, is shifted towards the child or the weaker party, or even the plaintiff in general rather than the defendant, a shift which is legitimised by substantive reasoning.24

15 Case C-412/98 Group Josi Reinsurance Company SA and Universal General Insurance Company (UGIC) [2000] ECR I-5925, EU:C:2000:399 para 36. 16 B Hess, ‘Die allgemeinen Gerichtsstände der Brüssel I-Verordnung’ in W Hau and H Schmidt (eds), Facetten des Verfahrensrechts: Liber Amicorum Walter F. Lindacher zum 70. Geburtstag (Cologne, Carl Heymanns, 2007) 54–55. 17 A Borrás, ‘Explanatory Report on the Convention, drawn up on the basis of Article K.3 of the Treaty on European Union, on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters (approved by the Council on 28 May 1998)’ [1998] OJ C221/27 para 28. 18 Recital 12 Brussels IIa. 19 Recital 9 Maintenance Regulation. 20 Recital 27 Succession Regulation, B Hess, C Mariottini and C Camara, ‘Regulation (EC) n. 650/2012 of July 2012 on jurisdiction, applicable law, recognition and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession – Note’ (2012) PE 462.493, 10. 21 Pontier and Burg, EU Principles 57. 22 The notion of a weaker party in civil procedure is not fixed, nor is it confined to family matters (see eg consumer law); it depends on the concrete normative context. Protection is generally expressed by establishing a forum actoris for that party. In maintenance matters, it is generally assumed that the maintenance creditor constitutes the weaker party (see the general introduction of the forum actoris rule in the Maintenance ­Regulation, art 3 lit b thereof). In matters of divorce, the Brussels IIa Regulation adopts a friendly position towards the spouse who returns to his/her country of nationality after separation (see Art 3(1) subpara a sixth indent). However, this choice rather reflects a compromise between the Member States than a conscious choice to protect a weaker spouse (see Borrás, ‘Explanatory Report’, para 32). These considerations do not play an important role in matters of succession, where other principles take over (eg forum/ius parallelism, unity of succession etc, see Ch 8 on the Succession Regulation). 23 cf U Magnus and P Mankowski, ‘Introduction’ in U Magnus and P Mankowski (eds), Brussels IIbis ­Regulation (Munich, Sellier European Law Publishers, 2012) para 4. 24 See Borrás (n 17) para 32, Recital 9 Maintenance Regulation.

166  Arantxa Gandía Sellens, Amandine Faucon Alonso and Philippos Siaplaouras In the following sections, the three Regulations’ rules on jurisdiction will be illustrated through selected problems.

II.  Selected Questions on Jurisdiction Related to the Brussels IIa Regulation A.  Preliminary Remarks The Brussels IIa Regulation evolved from other previous European instruments. According to its Preamble, Brussels IIa replaces the previous Regulation on the same matters, Brussels II Regulation (Recital 28 of Brussels IIa) and recalls that the content of the latter was substantially taken over from the Brussels II Convention (Recital 3 of Brussels IIa). The establishment of rules of jurisdiction in the field of matrimonial matters and parental responsibility arises from the preservation of the free movement of persons.25 To this end, it was necessary to simplify the formalities for establishing a rapid and automatic recognition of judgments,26 based on the principle of mutual trust.27 To achieve that simplification in the recognition stage, the unification of the rules of international jurisdiction28 was an unavoidable complementary step.29 Since Brussels IIa addresses two different categories as regards subject matter – matrimonial matters and parental responsibility – it is convenient to distinguish both of them in the following analysis. The aim of this contribution will be, therefore, to focus on certain selected issues linked to the two categories of matters covered by Brussels IIa: certain aspects of Articles 6 and 7 (exclusive nature of jurisdiction and residual jurisdiction); private divorces; Articles 8 and 9(1) (general jurisdiction and continuing jurisdiction of the child’s former habitual residence); and Article 12 (prorogation of jurisdiction). This analysis will be the basis for making proposals for improvement in light of the current Brussels IIter Proposal.

B.  Matrimonial Matters In the field of matrimonial crisis, the functioning of the rules of jurisdiction presents a certain degree of hierarchy. Although hierarchy in jurisdiction30 is normally identified

25 Recital 1 Brussels IIa Regulation; Recital 4 Brussels II Regulation. 26 Borrás (n 17) paras 5 and 12. 27 Recital 2 Brussels IIa Regulation. 28 Borrás (n 17) paras 5 and 12. 29 As the uniform rules of jurisdiction are assessed by the court of origin, the court in the recognition proceedings can trust that the assessment was properly made on the basis of the uniform rules. 30 Traditionally, the grounds of jurisdiction are classified into three categories: exclusive grounds (which will apply with priority over the others; they are normally connected to matters falling within the sovereign power of a state), general grounds (these are normally based on the domicile of the defendant, without taking into account the exact subject matter; Art 3 Brussels IIa uses as connecting factors the residence and the

Jurisdiction  167 with Brussels Ia Regulation, as opposed to the alternative grounds of jurisdiction of Article 3 of the Regulation Brussels IIa, it is worth noting that Regulation Brussels IIa equally presents several subsidiary provisions regulating matrimonial matters which go beyond the classical heads of jurisdiction to be found in Article 3 of that Regulation.31 Article 6 Regulation Brussels IIa requires the legal practitioner to first give priority to the alternative grounds of jurisdiction established in Article 3 (alongside with Articles 4 and 5), and if it is not possible to determine jurisdiction according to these provisions, the residual jurisdiction rules of Article 7 of the Regulation Brussels IIa come into play. The analysis following will focus on Article 6 Brussels IIa and the recourse to the residual jurisdiction rules. In addition, the new notarial divorces which were recently introduced by some EU Member States will be also addressed. These two topics are listed among the most problematic in current political and academic debate on matrimonial matters as regulated in Brussels IIa.

i.  The Need for a Forum Necessitatis Accompanied by a Universal Scope of Application The personal scope of application of Brussels IIa within matrimonial matters is problematic, especially regarding Articles 6 and 7.32 In the current text of Brussels IIa, Article 6 establishes that a spouse who is habitually resident in or national of a Member State may be sued in another Member State only in accordance with Articles 3, 4 and 5. Article 7 complements Article 633 providing that if no court of a Member State has jurisdiction pursuant to Articles 3, 4 and 5, jurisdiction shall be determined according to the national laws. This provision adds another possibility for assuming jurisdiction: against a respondent who is not habitually resident and is not either a national of a Member State, any national of a Member State who is habitually resident within the territory of another Member State may avail himself of the rules of jurisdiction applicable in that Member State (and act as claimant). Concerning parties resident in third states, it still remains unclear whether recourse to national rules of jurisdiction is possible when the respondent is a national or resident of a Member State and no court of another EU Member State would have jurisdiction under the Regulation Brussels IIa.34 nationality of the spouses) and residual grounds (these are additional grounds only meant to be used when no other grounds of jurisdiction apply; they generally refer to the national laws). 31 Art 3 Brussels IIa lists a total of seven options (listed in indents) to grant jurisdiction to a Member State court. These different options work alternatively, meaning that the claimant can choose whichever court appointed by those indents. The modus operandi of this provision, which presents alternative grounds of jurisdiction as opposed to hierarchical ones, has been the target of some criticism. Some arguments against the alternative grounds of jurisdiction focus on the so-called ‘race to the court‘, the forum shopping practice and their difficult application. 32 In fact, Arts 6 and 7 Brussels IIa Regulation ‘… have given rise to the greatest number of comments …’, A Borrás, ‘Article 6’ in U Magnus and P Mankowski (eds), Brussels IIbis Regulation (Munich, Sellier European Law Publishers, 2012) 98. In the sense that greater clarity is needed, J Borg-Barthet, ‘Jurisdiction in Matrimonial Matters – Reflections for the Review of the Brussels Iibis Regulation’ (2016) PE 571.361, 35. In the same line, B Ancel and H Muir Watt, ‘La disunion européenne: le Règlement dit “Bruxelles II”’ (2001) RCDIP para 15. 33 Borrás, ‘Article 6’ 99 and 102. 34 TM de Boer, ‘Jurisdiction and Enforcement in International Family Law: A Labyrinth of European and International Legislation’ (2002) 49 NILR 321. De Boer gives the following example: ‘… a French citizen living in Canada starts divorce proceedings in France against his Spanish wife living in Mexico. As a national of a

168  Arantxa Gandía Sellens, Amandine Faucon Alonso and Philippos Siaplaouras The CJEU case in Sundelind shed some light on the interpretation of these provisions. According to this judgment, when no court of a Member State has jurisdiction pursuant to Articles 3 to 5 Brussels IIa, jurisdiction is to be governed by the national law.35 The CJEU also held that the respondents who are habitually resident in or nationals of a Member State can only be sued under Articles 3 to 5 (Article 7(2)), but that rule does not impact the exclusive nature of the rules of jurisdiction contained in the Regulation. If jurisdiction can be assumed by a court pursuant to Articles 3 to 5, that jurisdiction prevails over any other jurisdiction grounded on national law.36 If an application for divorce is brought against a respondent who is not habitually resident in or national of a Member State, the jurisdiction of the court seised should be grounded in Articles 3 to 5 Brussels IIa. If jurisdiction cannot be based on Articles 3 to 5 of the Regulation Brussels IIa, the petitioner, being either a national of a Member State or habitually resident within the territory of another Member State, may avail himself of the national rules of jurisdiction applicable in that Member State.37 As stated before, Articles 6 and 7 of the Regulation Brussels IIa have been heavily criticised because of their convoluted wording. In addition, another observation focused on the lack of effectiveness of national rules, which might lead to situations where no jurisdiction is provided.38 However, case law collected in the EUFam’s project shows that, in general, judges are well aware of the exclusive nature of the grounds of jurisdiction contained in Articles 3 to 5 of the Regulation Brussels IIa.39 Additionally, it also follows from practice that the application of national rules on jurisdiction, through Article 7 of the Regulation Brussels IIa, is scarcely used.40 Regarding the need for a forum necessitatis rule, only

member state (Spain), she cannot be sued in another member state (France). In this situation, neither the French court nor any court in another member state would have jurisdiction under the Regulation’s provisions. Does that mean that the French court seized by the husband should decline to assume jurisdiction altogether (as suggested by Art. 6), or is it free to resort to its national law (as allowed by Art. 7)?’ 35 Case C-68/07 Kerstin Sundelind Lopez v Miguel Enrique Lopez Lizazo [2007] ECR I-10403, EU:C:2007:740 para 18. See comment by A Borrás, ‘“Exclusive” and “Residual” Grounds of Jurisdiction on Divorce in the Brussels IIbis Regulation’ (2008) IPRax 233–35. The facts of the case can be summarized as follows: Mrs Sundelind Lopez, a Swedish national, was married to Mr Lopez Lizazo, a Cuban national. The spouses were resident in France. After the breakdown of their relationship, Mrs Sundelind Lopez was still resident in France while her husband was resident in Cuba. On the basis of the Swedish legislation, Mrs Sundelind applied for divorce in Sweden. However, her petition was dismissed on the ground that, under Art 3 Brussels IIa, only the French courts had jurisdiction and that, accordingly, Art 7 of that Regulation precluded Swedish rules on jurisdiction being applied. After several years of litigation, the case reached the Supreme Court of Sweden. The Supreme Court then asked the CJEU for an interpretation of Art 7 Brussels IIa. In particular, the Supreme Court asked whether jurisdiction could be allocated on the basis of national rules (Art 7 Brussels IIa), where the respondent in a case concerning divorce was neither resident in a Member State nor a citizen of a Member State and no other EU Member State had jurisdiction pursuant to Art 3 Brussels IIa. 36 Case C-68/07 Sundelind Lopez (n 35 para 22. 37 ibid paras 23–24. 38 MJ Escher and J Wittmann, Report on German Good Practices (EUFam’s Project, 2016) 3 at www.eufams. unimi.it/wp-content/uploads/2017/01/EUFAMS-German-report-on-good-pracrices.pdf. 39 See EUFam’s project database: Trib Belluno, 30 December 2011, ITF20111230; Općinski sud Osijek, 23 December 2013, P2- 614/2013, CRF20131223; Trib Cagliari, 20 June 2013, ITF20130620; Cass, 2 May 2016 No 8619, ITT20160502. 40 L Sandrini, ‘Exclusive Jurisdiction’ in I Viarengo and FC Villata (eds), First Assessment Report on the Case Law Collected by the Research Consortium (EUFam’s Project, 2016) 36–37 at www.eufams.unimi.it/ wp-content/uploads/2017/01/EUFAMS-First-Assessment-Report-of-the-collected-case-law.pdf.

Jurisdiction  169 one case in the EUFam’s project41 case law gave rise to such a situation. Nevertheless, the case was not directly connected to a matrimonial matter, the couple being already divorced. The issue arose in relation to the splitting of pensions rights acquired during the marriage (Versorgungsausgleich). In that case, the court argued that the jurisdiction over this issue was derived from the jurisdiction over divorce. As the splitting of pension rights is not a matter covered by Brussels IIa, it seems that the reasoning applied in that case followed from national practice or national rules.42 Taking into account that this specific institution (the splitting of pensions rights acquired during marriage) is not regulated at the European level,43 in order to avoid situations of lack of jurisdiction the national rules dealing with it should not only provide substantive safeguards but also procedural ones. It should be noted that Article 1(2)(f) of the Regulation on matrimonial property regimes excludes from the scope of application of that Regulation ‘the entitlement to transfer or adjustment between spouses, in the case of divorce, legal separation or marriage annulment, of rights to retirement or disability pension accrued during marriage and which have not generated pension income during the marriage’. Therefore, this question still remains to be solved by national law.44 The Brussels IIter Proposal only merges Articles 6 and 7 into one provision, the new Article 6. Nevertheless, this fusion did not bring any substantial change to the previous understanding of the current Articles 6 and 7 Brussels IIa.45 Subsequently, some academics have suggested, for the sake of clarity, that this new Article 6 should be deleted.46 Others have advocated replacing it with a forum necessitatis rule.47 However, some positive reactions have also been expressed in that the proposed text better clarifies the previous Articles 6 and 7.48 Nevertheless, additional improvements seem to be advisable here: in order to guarantee access to justice as far as possible – even if this does not seem to be a recurrent problem in practice – a forum necessitatis rule would be desirable.49 This rule could be 41 All the deliverables of the EUFam’s Project – Planning the Future of Cross-Border Families: A Path Through Coordination www.eufams.unimi.it. 42 OLG Karlsruhe, 17 August 2009, 16 UF 99/09, DES20090817. 43 Even unknown at the national level in some Member States, see A Gandia Sellens, C Camara, A Faucon Alonso and Ph Siaplaouras, Report on Internationally Shared Good Practices (EUFam’s Project, 2016) 18 at www. eufams.unimi.it/wp-content/uploads/2017/06/Report-on-Internationally-Shared-Good-Practices-v2.pdf. 44 See B Heiderhoff, ‘Die EU-Güterrechtsverordnungen’ (2018) 1 IPRax 2. 45 This has been described as a ‘cosmetic’ change. See A Bonomi, ‘La compétence internationale en matière de divorce’ (2017) 4 RCDIP 511, 521. 46 M C Baruffi, C Fratea and C Peraro, Report on Italian Good Practices (EUFam’s Project, 2016) 3 at www. eufams.unimi.it/wp-content/uploads/2017/01/EUFams_Italian-Exchange-Seminar_Report_Italian_Good_ practices_eng_final3.pdf. 47 P Orejudo Prieto de los Mozos, ‘Diez años de aplicación e interpretación del Reglamento Bruselas IIbis sobre crisis matrimoniales y responsabilidad parental (análisis de los aspectos de competencia judicial internacional)’ (2014) La Ley. Unión Europea 21 para 17; Report on German Good Practices (n 38) 3. 48 R Espinosa Calabuig and L Carballo Piñeiro, Report on Spanish Good Practices (EUFam’s Project, 2016) 7 at www.eufams.unimi.it/wp-content/uploads/2017/01/EUFAMS-Spanish-report-on-good-practices.pdf. 49 Report on Internationally Shared Good Practices (n 43) 6. Bonomi, ‘La compétence’ (2017) 522–23 and 533 argues that the forum necessitatis should be accompanied by residual grounds of jurisdiction. These residual grounds of jurisdiction should correspond to the current indents 5 and 6 of Art 3(1)(a) of Brussels IIa (both based on the habitual residence of the applicant) and also to the current para b of Art 3(1) (based on the common nationality of the spouses). In both cases, these grounds of jurisdiction would apply if certain conditions were met. The same treatment of residual jurisdiction is also given to the courts of the Member State where the spouses had their previous residence.

170  Arantxa Gandía Sellens, Amandine Faucon Alonso and Philippos Siaplaouras designed so that if proceedings cannot reasonably be brought or conducted or would be impossible in a third state with which the case is closely connected, the courts of a Member State may hear the case. This would follow the examples of Article 7 of the Maintenance Regulation, Article 11 of the Succession Regulation or Article 11 of both new Regulations on matrimonial property regimes and property consequences of registered partnerships. Such a change would, therefore, bring Brussels IIa in line with the other EU Regulations on family law and increase procedural certainty and coherence. Moreover, this rule could be accompanied by a universal scope of application rule; meaning that if no ground of jurisdiction is given according to the Regulation to any EU Member State, then there should be no residual jurisdiction in favour of national rules.50 The introduction of such a provision would contribute to overcoming the difficulties in establishing the personal scope of application of Brussels IIa. In addition, it would also mitigate the ‘privilege of European citizenship’,51 kept in certain national rules of exorbitant jurisdiction.

ii.  The Need to Include so-called ‘Private Divorces’ So-called ‘private divorces’ fall under the broad category of foreign divorces declared (or constituted) without the intervention of a judicial authority. This broad heading groups: (a) divorces constituted by non-judicial public authorities; (b) divorces declared by public authorities; and (c) purely private divorces agreed by the parties without the intervention of an authority (or when the intervening authority does not have any official function).52 Nowadays in some EU Member States non-judicial authorities, like notaries, are able to constitute or declare the divorce (these divorces correspond to categories a and b, just listed). In some cases, those notaries just add a necessary formal requirement to the common will of the parties, only declaring the divorce (for example, in France53) or exercise (quasi) judicial powers, constituting the divorce (for example, in Spain54). There is an ongoing discussion55 focusing on the function exercised by the authority which intervenes (either declaratory or constitutive) and on the impact of this intervention in the framework of the Regulation. However, many authors agree that such a differentiation is not always easily made. They consider that the best and simplest way to avoid confusion is to apply the Brussels IIa Regulation to all cases

50 In a similar vein, T Kruger and L Samyn, ‘Brussels IIbis: successes and suggested improvements’ (2016) 12 JPIL 132, 140. 51 See Borrás (n 17) para 47; A Borrás, ‘Article 7’ in U Magnus and P Mankowski (eds), Brussels IIbis Regulation (Munich, Sellier European Law Publishers, 2012) 104. 52 AL Calvo Caravaca and J Carrascosa González, Derecho internacional privado II (Granada, Comares, 2016) 343–44. 53 French notaries assess formal aspects such as the name, profession, nationality and address of the parties. They also verify and include the mutual agreement in the notarial deed, as well as the terms of the divorce agreement. See Art 229.3 of the French Civil Code. 54 See Art 54 Ley Orgánica del Notariado. See also DGRN no. 114/16 N. 55 It should be noted that there are political and cultural tensions regarding the concept of marriage and divorce that also have an impact on the ongoing debate. However, the analysis here only takes into account the legal perspective.

Jurisdiction  171 where an official authority is involved in the divorce.56 Other scholars point to the use of Article 46 of Regulation Brussels IIa when a marriage is terminated by a document formally drawn up by a notary or registered as an authentic instrument.57 However, it is debatable whether Article 46 applies only to titles with enforceable content or, if there is no enforceable title, whether it is sufficient that the contents of the deed (containing a divorce) are capable of being recognised.58 The question whether notaries are included in the scope of application of the Brussels IIa is controversial.59 Indeed, there are, in my view, arguments for and against including notaries (as a free profession) in the scope of the EU Regulations related to family law. Among the arguments in favour are that the definitions of ‘court’ used in the different Regulations60 have a broad meaning, especially in light of the use of the term ‘authorities’ in plural. In this line, it is worth recalling the CJEU Judgment in Pula Parking.61 Even if this case refers to the Brussels Ibis Regulation, the Court did analyse the concept of court and notary in comparison with certain EU Family Law instruments. The Court established that [i]t should also be noted that, unlike, for example, Regulation (EU) No 650/2012 … whose Article 3(2) specifies that the term ‘court’, for the purposes of that regulation, encompasses not only the judicial authorities, but also any authority competent in that area which exercises judicial functions and which satisfies certain conditions listed in that provision, Regulation No 1215/2012 does not include any general provision having such an effect.62

The Court referred to the Succession Regulation where the EU lawmaker expressly included notaries in certain cases (when exercising judicial functions).63 However, one could argue that all the EU Family Law instruments follow the path of including ‘other authorities’ with jurisdiction/competence in the scope of the different Regulations.

56 See the different doctrinal positions in W Pintens, ‘Article 1’ in U Magnus and P Mankowski (eds), Brussels IIbis Regulation (Munich, Sellier European Law Publishers, 2012) 54; and in J Antomo, ‘Reformbedarf bei der Anerkennung von Privatscheidungen’ (2018) Neue Zeitschrift für Familienrecht 247, notes 58–59. 57 K Siehr, ‘Article 22’ in U Magnus and P Mankowski (eds), Brussels IIbis Regulation (Munich, Sellier European Law Publishers, 2012) 264. M L Niboyet, I Rein-Lescastereyres and L Dimitrov, ‘La “désinternationalisation” du nouveau divorce par consentement mutuel?’ (2017) 14 GP 74, 76. 58 See references (as for German doctrine) in U Magnus (who defends the latter view), ‘Article 46’ in U Magnus and P Mankowski (eds), Brussels IIbis Regulation (Munich, Sellier European Law Publishers, 2012) 383. 59 Expressing doubts on this question, Bonomi (n 45) 513. Also, P Hammje, ‘Le divorce par consentement mutual extrajudiciaire et le droit international privé’ (2017) 2 RCDIP 143 paras 6–8. Antomo, ‘Reformbedarf bei der Anerkennung von Privatscheidungen’ 247. 60 Art 2(1) Brussels IIa, Art 2(2) Maintenance Regulation, Art 3(2) Rome III Regulation and Art 3(2) Matrimonial Property Regulation. See also A Borrás, ‘What about matrimonial matters?’ (2016) PE 571.38 75, states that ‘… if an authority in a Member State intervenes, be that judicial or administrative, then the divorce would be included in the scope of application of the recast Brussels IIa Regulation. Otherwise, it would appear correct to exclude the private divorce from the scope of the Regulation ….’ 61 Case C-551/15 Pula Parking d.o.o. v Sven Klaus Tederahn [2017] ECLI:EU:C:2017:193. The analysis here only gives a short description of the status quo exclusively in family matters. This contribution does not intend to explore the relationship between Art 19 TEU (principle of effective judicial protection of individuals’ rights under EU law) and the minimum standards related to the exercise of judicial authority in the context of mutual trust. Notaries, if given judicial powers, must properly address EU law. See, on this topic, M Roccati, ‘The Role of the National Judge in a European Judicial Area. From an Internal Market to Civil Cooperation’ (2015) XVI YBPrIL 539–66. 62 Case C-551/15 Pula Parking (n 61) para 48. Emphasis added. 63 Recitals 20–22 Succession Regulation.

172  Arantxa Gandía Sellens, Amandine Faucon Alonso and Philippos Siaplaouras Among the arguments against the inclusion of notaries in the EU Family Law instruments in general and the Brussels IIa in particular, it should be noted that the Borrás Report does not expressly refer to notaries as a free profession. Instead, it uses a general reference when it states that ‘[i]n addition to civil judicial proceedings, the scope of the Convention also includes other non-judicial proceedings occurring in matrimonial matters in certain states. Administrative procedures officially recognised in a Member State are therefore included’, and the examples given afterwards only refer to public authorities (as for the District Council or the Civil Law Directorate in Denmark).64 Some light is given by the recent judgment of the CJEU in Sahyouni65 which referred to the Rome III Regulation in relation to a purely private divorce from a third state. Here, the Court recalled the need to keep in line both the Rome III Regulation and the Brussels IIa Regulation (para 40). According to the Court, at the time of the adoption of that regulation, in the legal systems of the Member States participating in such enhanced cooperation, public bodies alone were able to adopt legally valid decisions in that sphere. It is therefore necessary to find that, by adopting that regulation, the EU legislature had in mind only situations in which divorce is pronounced by a national court or by, or under the supervision of, another public authority, and that, accordingly, it was not the intention of the EU legislature that that regulation should be applicable to other types of divorce, such as those which, as in the present case, are based on a ‘private unilateral declaration of intent’ pronounced before a religious court.66

In addition and concerning the introduction into the legal systems of certain Member States of the possibility for divorces to be pronounced without the involvement of a state authority, the Court stated that that inclusion within the scope of the EU Regulations would require further arrangements.67 In the political debate on reform of the Brussels IIa Regulation certain Member States, especially France and Spain, have maintained that their notaries, as a free profession, are already included in the scope of application of the Brussels IIa Regulation.68 In this regard it should be noted that the application of the law included in Regulations to situations not falling in its scope might be possible by virtue of national law. This was

64 Borrás (n 17) paras 19–20. 65 Case C-372/16 Soha Sahyouni v Raja Mamisch [2017] ECLI:EU:C:2017:988. The facts of the case can be summarized as follows: Mr Mamisch and Ms Sahyouni married in Syria. After having lived several years in different countries, they separated, establishing – both of them – their habitual residence in Germany. Mr Mamisch declared his intention to dissolve his marriage by having his representative pronounce the divorce formula before a religious sharia court in Syria. Afterwards, Mr Mamisch applied for recognition of the divorce in Germany. In the course of the proceedings, the Higher Regional Court of Munich asked the CJEU whether private divorces are included in the scope of application of the Rome III Regulation. It is worth noting that Germany follows a substantive recognition approach in these cases (ie checking that the conditions required by the applicable law were fulfilled, therefore the recourse to Rome III Regulation). 66 Case C-372/16 Soha Sahyouni (n 65) para 45. 67 ibid para 47. 68 Report on Internationally Shared Good Practices (n 43) 10. Here the main difference between French and Spanish notaries is that Spanish notaries must check, as explicitly instructed by the guidelines provided by the ‘Dirección General de Registros y del Notariado’, the heads of jurisdiction of the Brussels IIa Regulation. This is not the case for French notaries (see A Boiché, ‘Divorce 229-1: aspect de Droit International Privé et Européen’ (2017) 1 AJF 57; A Devers, ‘Le divorce sans juge en droit international privé’ (2017) 1 DF para 2; Niboyet, Rein-Lescastereyres and Dimitrov, ‘La “désinternationalisation”’ 76; D Eskenazi, ‘Les pièges d’un divorce international’ (2017) 268 DrP 40, 41; Hammje, ‘Le divorce’ para 6).

Jurisdiction  173 the case in Sahyouni, where the German legal system declared applicable the Regulation Rome III to purely private divorces,69 although it was not expressly stated in the Regulation whether they were covered (and in Sahyouni the CJEU declared they were not). However, the extension of the Regulation to private divorces outside of its scope by national law does not entail that these divorces are recognised under the Regulation. In my opinion, the recast of Brussels IIa should explicitly include these divorces validated by notaries and other non-judicial authorities when the law of the respective Member State gives them the powers to do so. This form of divorce might become a trend in many Member States (currently, not only France and Spain have regulated it, but also Italy70). Nowadays, the role of the judge in judicial divorces is, in practice, merely formal since there is no need to give specific reasons for justifying the will to get a divorce.71 Therefore, this formality can also be carried out by a non-judicial authority. However, these authorities should observe the procedural safeguards established in the different EU Family Law instruments. As such, they should observe, in particular, the rules of jurisdiction contained in Brussels IIa and give the child the opportunity to be heard with the adequate guarantees.

C.  Parental Responsibility i.  The Lawful Change of Habitual Residence and the Perpetuatio Fori Principle Following Article 8(1) Brussels IIa, the general jurisdiction rule in matters of parental responsibility points to the courts of the Member State where the child is habitually resident. However, by way of exception and according to Article 9, in cases when the child moves lawfully from one Member State to another and acquires a new habitual residence there, the courts of the Member State of the child’s former habitual residence retain jurisdiction during a three-month period following the move. This exception was introduced to protect the interests of the child.72 Nevertheless, this rule only applies for the purpose of modifying a judgment on access rights issued in the Member State from which the child was moved, where the holder of access rights pursuant to the judgment on access rights continues to have his habitual residence. This head of jurisdiction is applicable unless the holder of access rights accepts the jurisdiction of the courts of the Member State of the child’s new habitual residence by participating in the proceedings before those courts without contesting their jurisdiction. This behaviour would be understood as a renunciation, by the holder

69 Case C-372/16 Soha Sahyouni (n 65) para 28. Case C-268/15 Fernand Ullens de Schooten v État belge [2016] EU:C:2016:874 paras 53 ff. 70 See, for a comparative view, Hammje (n 59) para 3. 71 This would be the case in Spanish law. According to Arts 81 and 86 of the Spanish Civil Code, in order to get a divorce the only requirement is that three months have elapsed from the celebration of the marriage. 72 A Borrás, ‘Article 8’ in U Magnus and P Mankowski (eds), Brussels IIbis Regulation (Munich, Sellier European Law Publishers, 2012) 115.

174  Arantxa Gandía Sellens, Amandine Faucon Alonso and Philippos Siaplaouras of the visiting rights, of this ground of jurisdiction.73 The Brussels IIter Proposal added a clarification to the text of the current Article 8.74 This clarification responds to the currently unanswered question of jurisdiction in cases where a minor moves lawfully without any previous judgment on parental responsibility (ie the proceedings are still ongoing but no judgment has been issued yet). According to the Proposal, the authorities of the Member State of the new habitual residence shall decide the parental responsibility. Unfortunately, this clarification has been removed in the Report of the European Parliament on the Brussels IIter Proposal.75 As a result, the situation continues to be unclear in these cases of lawful move. Another relevant issue concerning the temporal change of residence of a child when the proceedings were initiated has been identified in the case law of German courts. The child, having habitual residence in Germany, was staying in Austria when the judicial proceedings over parental responsibility were initiated in Germany. The child went back to Germany with his mother afterwards, once the proceedings were ongoing. The German Supreme Court ruled establishing the international jurisdiction in favour of the German courts, basing its reasoning on procedural economy, given that otherwise the court would have to deny its international jurisdiction in the first place, just to start a new proceeding a few months later.76 While this solution seems reasonable, it cannot be found in Article 9 Brussels IIa and Article 5(2) of the 1996 Hague Convention on the Protection of Children. On the one hand, the 1996 Hague Convention on the Protection of Children does not contain a rule providing for the continuance of the jurisdiction of the child’s former habitual residence. Instead, it contains the general principle of giving jurisdiction to the authorities of the new habitual residence, without adding further information. On the other hand, under Brussels IIa, the prorogation of jurisdiction during three months is only foreseen for modifying an already issued judgment (Article 9(1)). If there are no ongoing proceedings and no judgment has been delivered, both instruments (Brussels IIa and the 1996 Hague Convention on the Protection of Children) provide for the same solution: the jurisdiction pertains to the state of habitual residence at the time the court is seised. This idea has been strengthened in the text of the latest Brussels IIter Proposal.77 Despite this unity of result, it is worth noting that Brussels IIa has priority over the 1996 Hague Convention on the Protection of Children among Member States due to Article 61 Brussels IIa.78 73 A Borrás, ‘Article 9’ in U Magnus and P Mankowski (eds), Brussels IIbis Regulation (Munich, Sellier European Law Publishers, 2012) 119. 74 This Article corresponds to Art 7 in the numbering of the Proposal. 75 See amendment No 10 of the European Parliament Draft Report on the proposal for a Council regulation on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast), 2016/0190 (CNS). 76 See I Viarengo, ‘General Grounds of Jurisdiction’ in I Viarengo and FC Villata (eds), First Assessment Report on the Case Law Collected by the Research Consortium (EUFam’s Project, 2016) 28 at www.eufams. unimi.it/wp-content/uploads/2017/01/EUFAMS-First-Assessment-Report-of-the-collected-case-law.pdf and BGH, 17 February 2010, XII ZB 68/09, DET20100217. 77 Welcoming this change, GEDIP, ‘Comments on the Commission Proposal for a Council Regulation on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast) (COM (2016) 411 final)’ (2016), para 15. Also suggesting a similar change, H van Loon, ‘The Brussels IIa Regulation: Towards a Review?’ (2015) PE 510.003, 192. 78 J Pirrung, ‘Article 61’ in U Magnus and P Mankowski (eds), Brussels IIbis Regulation (Munich, Sellier European Law Publishers, 2012) 431.

Jurisdiction  175 A more problematic situation would arise in the case where, while the proceedings are ongoing, the child lawfully moves to another Member State. Here, the issue would be that, as no judgment has been given so far, there is nothing to modify and in theory, Article 9 does not apply, pursuant to its wording (‘jurisdiction … for the purpose of modifying a judgment’ in the current text of Brussels IIa or ‘decision’ in the Proposal). Therefore, Article 8 (the general rule on jurisdiction on parental responsibility, focusing on the place of residence of the child) applies, alongside Articles 16 and 17 Brussels IIa (on seising of a court and examination as of jurisdiction). According to these Articles, the court checks its jurisdiction when it is seised. Thus, if proceedings are still pending in a Member State, without a judgment being issued yet, that Member State will retain jurisdiction even if the child lawfully moves following the general principle of perpetuatio fori.79 This principle is, however, not applicable in the framework of the 1996 Hague Convention on the Protection of Children.80 In this regard the Brussels IIa Regulation and the 1996 Hague Convention on the Protection of Children differ.81 Indeed, while according to The Hague Convention the jurisdiction follows the child,82 the current text of the Brussels IIa Regulation does not contain such a provision and therefore the jurisdiction remains with the court which is hearing the case. Nevertheless, the Brussels IIter Proposal has brought Brussels IIa in line with the 1996 Hague Convention on the Protection of Children. According to Recital 15 and Article 8(1) of the Brussels IIter Proposal, when a child moves lawfully to another Member State, jurisdiction should follow the child even if proceedings are ongoing. However, parties may agree that the courts of the Member State where proceedings are ongoing retain jurisdiction until a final decision has been given. This possibility of agreement on the already seised court is not contained in any Article, but only sketched in Recital 15 and this might lead to problems in practice (eg, how and when the agreement should be made). Fortunately, the Report of the European Parliament on the Brussels IIter Proposal recommends including it in the text of Article 7(1) of the Brussels IIter Proposal. Concerning the current situation, ie the application of the perpetuatio fori principle in the scope of Brussels IIa, it is worth mentioning that if the child lawfully moves to another Member State in an early stage of the proceedings, the court which assumed jurisdiction as to the merits could also use the mechanism of transfer of jurisdiction (Article 15). Consequently, this court could give jurisdiction to the court where the child had his/her previous habitual residence if all the requirements under Article 15 are met.83

79 On the negative consequences of this principle, ThM de Boer, ‘What We Should Not Expect from a Recast of the Brussels IIa Regulation’ (2015) 1 NedIPR 10, 16–17. 80 P Lagarde, ‘Explanatory Report on the 1996 Hague Child Protection Convention’ (The Hague Conference on Private International Law, 1998) para 42. 81 Borrás, ‘Article 9’ 117. See also OLG Karlsruhe, Beschl. v. 12 November 2013–5 UF 140/11. 82 See Art 5(2) of The Hague Convention: ‘… in case of a change of the child’s habitual residence to another Contracting State, the authorities of the State of the new habitual residence have jurisdiction’. 83 See, on Art 15, Case C-428/15 Child and Family Agency v J. D. [2016] EU:C:2017:62. Also Case C-478/17 IQ v JP [2018] ECLI:EU:C:2018:552.

176  Arantxa Gandía Sellens, Amandine Faucon Alonso and Philippos Siaplaouras

ii.  A Hidden Choice-of-Court Rule in Article 12? Article 12 Brussels IIa contains a rule establishing jurisdiction over parental responsibility questions in favour of the court already exercising jurisdiction for matrimonial matters in connection with the same case, involving the same parties. There is no distinction concerning the personal situation of the child: this provision is also applicable to an abducted child.84 This prorogation of jurisdiction is only foreseen in two constellations which are regulated in Articles 12(1) and 12(3): either when the jurisdiction over matrimonial matters was assumed by virtue of Article 3 of the Regulation; or when the child has a substantial connection with a specific Member State. In the first case, the jurisdiction will be established in favour of the courts already exercising jurisdiction over the application for divorce, legal separation or marriage annulment of at least one of the holders of parental responsibility. In the second case, jurisdiction over parental responsibility will be allocated to the courts of the Member State to which the child is substantially connected (in particular by virtue of the fact that one of the holders of parental responsibility is habitually resident in that Member State or that the child is a national of that Member State). Moreover, additional requirements should be met: for the first option, it is necessary that at least one of the spouses has parental responsibility for the child (Article 12(1)(a)); and for both options, the jurisdiction of the courts must have been accepted expressly or otherwise in an unequivocal manner by all the parties to the proceedings, at the time the court is seised, and done in the best interests of the child (Articles 12(1)(b) and 12(3)(b)). The temporal element is, thus, essential. The expression ‘at the time the court is seised’ is to be read in connection with Article 16. Following the interpretation given to both Articles, the prorogation can only work in cases where the parties have agreed to the prorogation before submitting their claim or in the event of a joint application.85 Consequently, it could be said that Article 12 contains a sort of choice-of-court possibility. This option contained in Article 12 is, however, midway between a choice of court and jurisdiction by appearance. On the one hand, it is not a classical choice-of-court agreement because it does not depend only on the parties’ will as additional conditions apply (notably, the best interests of the child, which is a requirement that should be assessed by the judge at the moment of assessing the jurisdiction86). Moreover, the fact that the agreement has to be concluded ‘at the time the court is seised’ appears to imply

84 E Pataut, ‘Article 12’ in U Magnus and P Mankowski (eds), Brussels IIbis Regulation (Munich, Sellier European Law Publishers, 2012) 149. 85 Case C-656/13 L v M [2014] ECLI:EU:C:2014:2364 paras 55–56. The expression ‘document instituting the proceedings or an equivalent document’ has been borrowed from Art 27(2) Brussels Convention (see P Mankowski, ‘Article 16’ in U Magnus and P Mankowski (eds), Brussels IIbis Regulation (Munich, Sellier European Law Publishers, 2012) 187) and according to Case C-474/93 Hengst Import BV v Anna Maria Campese [1995] ECR I-02113 para 19 means ‘… the document or documents which must be duly and timeously served on the defendant in order to enable him to assert his rights before an enforceable judgment is given in the State of origin’. 86 Here it is convenient to recall Case C-436/13 E v B [2014] ECLI:EU:C:2014:2246 para 46: ‘… while a prorogation of jurisdiction accepted by the holders of parental responsibility of a young child for specific proceedings may be considered as being in the best interests of that child, it cannot be accepted that, in every case, such a prorogation of jurisdiction remains … in that person’s best interests.’

Jurisdiction  177 that the spouses may revoke it until that very moment. Although the court is seised at the moment when the application is filed (cf Article 16), one could argue that it continues to be seised while the proceedings are ongoing. However, the expression ‘at the time the court is seised’ seems to be referring to that specific time when the court is seised, without admitting a prolongation of that moment.87 In this line, Article 16 Brussels IIa (seising of a court) refers to two specific moments for considering the court seised: at the time when the document instituting the proceedings is lodged with the court or at the time when the document instituting the proceedings is received by the competent authority (if the document has to be served before being lodged with the court). However, this provision does not indicate when the court ceases to be seised.88 If there is no clear time-lapse for the seizure of the court, it is difficult to assess if the parties could revoke the agreement on jurisdiction while the proceedings are ongoing. If that revocation could be possible, this would differ from the traditional choice-of-court agreement. On the other hand, the mechanism of Article 12 of the Brussels IIa Regulation cannot be considered a submission by appearance in the sense of Article 26 of Brussels Ia because of the requirement of the explicit or unequivocal acceptance at the time the court is seised. In the classical case of jurisdiction by appearance, the defendant just replies on the substance (without challenging the jurisdiction of the court seised89). However, it is difficult to consider this as an unequivocal (unmistaken) acceptance of the jurisdiction in the sense of Article 12 Brussels IIa.90 While the reply on the substance could be understood as an acceptance of the jurisdiction, this acceptance of the jurisdiction has to occur ‘at the time the court is seised’91 and when the counterparty introduces his arguments as for the merits without contesting jurisdiction (jurisdiction by appearance), the court has been already seised. Therefore, it would be too late according to the requirements of Article 12.

87 In this line, see Case C-656/13 L v M (n 85) paras 55–56. 88 See Mankowski, ‘Article 16’ 200. 89 According to the CJEU, an agreement under Art 12 Brussels IIa does not exist if one party initiates proceedings before a court and another party later appears before that same court in order to challenge its jurisdiction, see Case C-656/13 L v M (n 85) para 57. 90 According to Rauscher, Art 12 is not an agreement on jurisdiction but rather a vague parallel to jurisdiction by appearance, see T Rauscher, ‘Art 12 Brüssel IIa-VO’ in T Rauscher (ed), Europäisches Zivilprozess- und Kollisionsrecht EuZPR – EuIPR, 4th edn (Cologne, Otto Schmidt, 2014) para 1. Gottwald considers it to be a kind of an agreement on jurisdiction, see P Gottwald, ‘EWG VO 2201/2003 Art. 12’ in T Rauscher (ed), Münchener Kommentar zum FamFG, 2nd edn (Munich, CH Beck, 2013) para 4. Schäuble speaks of a prorogation, see D Schäuble, ‘Art. 12 Brüssel IIa-VO’ in C Althammer (ed), Brüssel IIa Rom III Kommentar (Munich, CH Beck, 2014) para 11. Dörner indicates it is not a jurisdiction agreement, see H Dörner, ‘EuEheVO Artikel 12’ in I Saenger (ed), Zivilprozessordnung Handkommentar, 7th edn (Baden-Baden, Nomos, 2017) para 10. Coester-Waltjen says that Art 12 does not constitute a classical prorogation agreement, but it is rather close to jurisdiction by appearance, from which it differs due to the need to have jurisdiction expressly accepted, see D Coester-Waltjen, ‘Parteiautonomie in der internationalen Zuständigkeit’ in S Lorenz et al (eds), Festschrift für Andreas Heldrich zum 70. Geburtstag (Munich, CH Beck, 2005) 549, 560. Geimer expresses the view that a prorogation agreement is not needed, but jurisdiction by appearance is not enough either, see R Geimer, ‘EuEheVO Artikel 12’ in Zöller Zivilprozessordnung, 32nd edn (Cologne, Otto Schmidt, 2018) para 9. The author is grateful to Ph Siaplaouras for the research on this topic. 91 According to the CJEU, the parties’ acceptance of the proceedings must be given on the date on which the court is seised and this date corresponds, in principle, to when the document instituting the proceedings or an equivalent document is lodged with the court (see Case C-436/13 E v B (n 86) para 38, and Case C-656/13 L v M (n 85) para 55).

178  Arantxa Gandía Sellens, Amandine Faucon Alonso and Philippos Siaplaouras In this line, the moment of acceptance of the jurisdiction by the parties to the proceedings constitutes the main problem of Article 12 in practice.92 Generally, judges tend to assume jurisdiction when the defendant does not contest it, treating this ground of jurisdiction as the classical jurisdiction by appearance93 in the sense of Article 26 Brussels Ia (and the corresponding provisions of national laws). However, the text of Article 12 Brussels IIa does not describe the provision in the same terms as Article 26 Brussels Ia. Whereas the latter Article only requires that the ‘defendant enters an appearance’ before a court, without contesting its jurisdiction, in Article 12 Brussels IIa, jurisdiction has to be accepted ‘expressly or otherwise in an unequivocal manner’. The expression ‘unequivocal manner’ seems to suggest a higher level of acceptance than a mere ‘appearance’. Thus, it would help if judges expressly ask the parties for their acceptance in cases where the defendant just appears in front of the court. Moreover, as discussed above, the timeframe established by the Article for accepting the jurisdiction (at the time the court is seised) makes it difficult to accept the jurisdiction by appearance in this context. In the recent judgment Saponaro/Xylina94 the CJEU shed some light on this issue, although the wording used in the judgment does not completely solve the problem. The Court stated that the joint lodging of proceedings by the parents of the child before the court of their choice is an unequivocal acceptance by them of that court.95 It also held that in the absence of opposition from the prosecutor the agreement of that party may be regarded as implicit and the condition of the unequivocal acceptance of prorogation of jurisdiction by all the parties to the proceedings at the date on which that court was seised, may be held to be satisfied.96

The role of the prosecutor in certain legal proceedings has a special nature. Whereas the prosecutor is considered to be a party in the proceedings, it is difficult to conceive, in practice, a joint application by the holders of the parental responsibility alongside the prosecutor. Therefore, due to the special nature of the intervention of the prosecutor as party, the solution here held by the CJEU could not be applicable, mutatis mutandis, if the mere appearance in the proceedings came from one of the holders of the parental responsibility. This special nature, alongside the use of the modal verb ‘may’, shows that this interpretation is a possibility, but it still remains unclear if it can be applicable to any party in the proceedings. Article 10 of the Brussels IIter Proposal did not introduce

92 KS Bratislava, 13 January 2014, 11CoP/362/2013, SKS20140113; AG Steinfurt, 8 January 2008. 10 F 9/07, DEF20080108. See also FC Villata, ‘Prorogation of Jurisdiction’ in I Viarengo and FC Villata (eds), First Assessment Report on the Case-Law Collected by the Research Consortium (EUFam’s Project, 2016) 30–31 at www. eufams.unimi.it/wp-content/uploads/2017/01/EUFAMS-First-Assessment-Report-of-the-collected-caselaw.pdf. 93 See Report on Italian Good Practices (n 46) 6–7; Report on Spanish Good Practices (n 48) 11–12. 94 Case C-565/16 Alessandro Saponaro and Kalliopi-Chloi Xylina [2018] ECLI:EU:C:2018:265. The facts can be summarized as follows: Mr Sapanoro and Ms Xylina, acting on behalf of their minor child, made a joint application for authorisation to renounce the inheritance from the maternal grandfather of that child. This application was made before the Greek courts, whereas the applicants and their minor child lived in Italy. According to Greek law, the prosecutor is also a party to the proceedings and was not opposed to the jurisdiction of the Greek courts. 95 Case C-565/16 Alessandro Saponaro and Kalliopi-Chloi Xylina (n 94) para 40. 96 ibid para 32.

Jurisdiction  179 major changes to the present situation. It is only remarkable for the new determination of the time-limit for accepting the jurisdiction of the court on parental responsibility. That acceptance should be expressly declared or unequivocally deducted at the latest at the time the court is seised, or where the law of that Member State so provides, during the proceedings (the part in italics is newly introduced by the Proposal). This solution will contribute to improving the current problem of acknowledging the unequivocal acceptance in those states whose law provides for a larger time-limit. However, if this is not the case, it is difficult to predict the circumstances where an unequivocal acceptance can be deducted at the time the court is seised (thus, from the very beginning). In order to solve the confusion at the judicial level of assessing the unequivocal circumstances of acceptance, it would be advisable that a clarification of such an acceptance ‘in an unequivocal manner’ is introduced in a Recital.

D. Summary The analysis above shows that there is still much room for improving the Brussels IIa Regulation. Although this instrument has proven itself as a useful tool in European Family Law, the opportunity given by its second recast should be used to clarify some problematic questions spotted by practitioners and scholars. Among those questions, the focus here has been on five, notably: (I) The need for a forum necessitatis accompanied by a universal scope of application. In light of the difficulties for determining the personal scope of application of the Regulation, a different approach here would be advisable, particularly following the path of the large majority of European Family Law instruments. (II) There is a compelling need to address the so-called ‘private divorces’. Since the current text of the Regulation is ambiguous about the inclusion of the new trend of divorces constituted or declared by a non-judicial authority, more clarity is needed.97 Therefore, in order to guarantee legal certainty and a European legal system able to cope with new forms of divorce, it would be advisable to explicitly include them and to establish certain procedural safeguards to protect vulnerable parties. (III) With regard to parental responsibility, the lawful change of habitual residence and the perpetuatio fori principle are not sufficiently addressed. The change introduced in the Brussels IIter Proposal here must be welcome. It proposes to establish the principle that jurisdiction should follow the child in those cases where the child moves lawfully to another Member State. However, the possibility of agreement on the already seised court (if there is already one) is only foreseen in Recital 15 of the Brussels IIter Proposal, which leaves the door open to possible divergent approaches of the national courts, given the merely informative nature of the recitals. It would be advisable to establish this possibility in an Article, as recommended by the Report of the European Parliament on the Brussels IIter Proposal.



97 In

this line, Antomo (n 56) 248.

180  Arantxa Gandía Sellens, Amandine Faucon Alonso and Philippos Siaplaouras (IV) The midway between a choice of court and jurisdiction by appearance contained in Article 12 of the Brussels IIa Regulation. The fact that the agreement has to be concluded ‘at the time the court is seised’ leaves little room for establishing jurisdiction in accordance to this provision. Explicitly establishing the real nature of this sort of choice of court could help in better planning and foster the use of this head of jurisdiction in those cases where the specific conditions are met. (V) Strengthening judicial communication should be considered in the recast of the Brussels IIa Regulation. Judicial communication might be a practical tool to overcome inconsistencies, diverging interpretations and negative competence conflicts.

III.  The Operation of the Maintenance Regulation in Practice A. Introduction While maintenance matters were covered by the Brussels Convention and the Brussels I Regulation, the EU has been eager to further simplify and accelerate the settlement of cross-border maintenance ever since the Tampere Council meeting in 1999.98 The main objective has been to eliminate obstacles to the recovery of maintenance claims and thereby guarantee the free movement of related decisions within the EU.99 It also aimed at easing the recovery of maintenance debts for public authorities who advance the amount to the creditor and consequently become entitled to act in their place to recover the debt.100 To achieve that, the legislator has been willing to establish minimum guarantees through common procedural rules, common conflict of laws rules and to abolish exequatur so that maintenance claims would be more quickly, efficiently and economically enforced in requested states.101 The Maintenance Regulation was adopted in December 2008 and became the second Regulation related to family matters adopted at EU level.102 It harmonises the

98 Council of the European Union, Presidency Conclusions, Tampere European Council, 15–16 October 1999, 16 October 1999. 99 Recitals 22, 25, 26, 31, 45 and 52. Of the online questionnaire respondents, 38% believe that the Regulation has effectively eased the recovery of cross-border maintenance claims (cf MC Baruffi, C Fratea, D Danieli and C Peraro, Report on the Outcome of the Online Questionnaire (EUFam’s Project 2017) 26 at www.eufams. unimi.it/wp-content/uploads/2017/06/EUFAMS-Report-Outcomes-Online-Questionnaire.pdf). 100 Recital 14 and Art 64 additionally indicate that public bodies paying benefits to the creditor are entitled to services and legal aid as if they were the original one. In the framework of the international seminar it was, however, stressed that such substitution does not go as far as giving public authorities the opportunity to initiate proceedings at the place of habitual residence of the original creditor. See Report on Internationally Shared Good Practices (n 43) 41. 101 Recitals 22 and 26. 102 Regarding the process leading to adoption, see F Ferrand, ‘The Council Regulation (EC) No 4/2009 of 18 December 2008’ in B Campunzano Díaz et al (eds), Latest Developments in EU Private International Law (Cambridge, Intersentia, 2011) 83–86.

Jurisdiction  181 rules on jurisdiction, applicable law103 as well as recognition and enforcement, related to ‘maintenance obligations arising from a family relationship, parentage, marriage or affinity’.104 It specifies that the term ‘maintenance obligation’ ought to be interpreted autonomously.105 There is also no definition of ‘family relationship’. The absence of such definitions is particularly problematic as characterisation problems may arise across Member States.106 With the Regulation entering into force in January 2009 and being applicable from 18 June 2011, maintenance claims now fall outside the scope of the Brussels Ia and European Enforcement Order Regulations.107 Territorially, following the decision of the United Kingdom to join and of Denmark to implement its content, the Maintenance Regulation applies in all EU Member States.108 As for the four European Free Trade Association countries, maintenance matters remain covered by the 2007 Lugano Convention. In parallel, The Hague Conference of Private International Law adopted a 2007 Hague Maintenance Protocol. The EU took part in its preparation and sought for synergy, coherence and complementarity between both instruments while considering their different geographical scope.109 Rather than establishing two parallel regimes, Article 15 of the Maintenance Regulation specifically refers to the 2007 Hague Maintenance Protocol to establish the law applicable to Maintenance.110 For the United Kingdom and Denmark, domestic rules will designate the applicable law as they are not party to the Protocol. One of the peculiarities of the Maintenance Regulation is a consequence of both those international instruments existing in parallel. Different sets of rules are applicable depending on whether the state of origin is party to the 2007 Hague Maintenance Protocol or not. In that instance, the Protocol applies to designate the applicable law and, consequently, the requirement of exequatur proceedings is abolished. If the state is not a party to the Protocol,111 the applicable law is designated domestically and a declaration of enforceability is necessary for enforcement. The circulation of decisions thereby operates at a much lower (and less effective) procedural level. Provisions for jurisdiction are the same in both scenarios.

103 Through the Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations. 104 Art 1(1). 105 Recital 11. 106 B Hess and S Spancken, ‘Setting the scene – The EU Maintenance Regulation’ in P Beaumont et al (eds), The Recovery of Maintenance in the EU and Worldwide (Oxford, Hart Publishing, 2014) 333. 107 With the exception of EEO concerning maintenance obligations issued by EU countries that are not bound by the 2007 Hague Protocol. 108 While the United Kingdom did not participate in the adoption of the Regulation, its application was extended by the Commission Decision 2009/451/EC of 8 June 2009, OJ L149/73. Regarding Denmark: Agreement between the European Community and the Kingdom of Denmark on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, OJ L149/80. 109 Recitals 17, 20, 24. 110 Art 4 of the 2007 Protocol has recently been interpreted by the Court of Justice in relation to a change of habitual residence and the application of the lex fori if the creditor is unable to obtain maintenance in accordance with the law normally applicable (Case C-83/17 KP v LO [2018] ECLI:EU:C:2018:408). 111 So far, within EU countries, this concerns the United Kingdom and Denmark.

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B.  The Current System Regarding Jurisdiction Chapter II of the Maintenance Regulation contains the rules on jurisdiction. It consists of a general rule (A) followed by a provision that offers some autonomy to certain parties (B). It also provides additional avenues concerning subsidiary jurisdiction and a forum necessitatis (C).

i.  General Grounds of Jurisdiction The general provision on jurisdiction in maintenance cases is found in Article 3 of the Regulation. It provides that the court to be seised shall correspond either to: • • • •

the habitual residence of the defendant/debtor; the habitual residence of the creditor; the court seised concerning the status of a person; the court seised in relation to parental responsibility proceedings.

The last two possibilities are of particular importance in practice as maintenance claims are almost always ancillary to divorce or parental responsibility proceedings.112

ii.  Choice of Court In addition to the general provision, Article 4 of the Maintenance Regulation offers the possibility for parties to opt for the court where they are habitually resident or the court of the country of which one of them is a national. For maintenance obligations concerning spouses, or former spouses, there are two additional possibilities: the court that has jurisdiction for the matrimonial matters dispute or the court of their last habitual residence. In every case, the second indent of the Article specifies that the agreement must be in writing, at the latest at the moment the court is seised. Article 4(3) stipulates that the choice-of-court possibility does not exist for disputes relating to maintenance for a child under the age of 18.113 This limitation serves the purpose of protecting children as ‘weaker parties’.114 The Maintenance Regulation also specifies that a court of a state party to the 2007 Lugano Convention could be designated but such agreement shall be made following the conditions and requirement set by the said convention.115

112 L Walker, Maintenance and Child Support in Private International Law (Oxford, Hart Publishing, 2015) 53. 113 For more details on that specificity, see M Abendroth, ‘Choice of Court in Matters Relating to Maintenance Obligations’ in P Beaumont et al (eds), The Recovery of Maintenance in the EU and Worldwide (Oxford, Hart Publishing, 2014) 467–69. As a practical example from the EUFam’s project database see: OS Brezno, 28 August 2013, 2P/93/2013, SKF20130828, where the Slovak court expressly mentioned that no choice of court could be accepted given the age of the children. 114 M Hellner, however, argues that the best interests of the child could actually be better protected thanks to prorogation of jurisdiction, especially when allowing a child to bring proceedings, see M Hellner, ‘The Maintenance Regulation: A Critical Assessment of the Commission’s Proposal’ in K Boele Woelki and T Sverdrup (eds), European Challenges in Contemporary Family Law (Antwerp, Intersentia, 2009) 349. 115 Art 4(4).

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iii.  Jurisdiction in Cases of Changed Circumstances Article 8 of the Maintenance Regulation applies in the context where a decision on maintenance has been issued by the country of residence of the creditor but the debtor seeks to have that decision modified or obtain a new one. In order to avoid forum shopping, the Article precludes a debtor from seising another Member State’s court while the creditor retains his habitual residence in the country of the initial ruling. That rule can be circumvented in particular situations such as if parties agree on the new jurisdiction or the defendant appears before the new court without contesting its jurisdiction. Different national courts have referred to Article 8 to either establish the possibility of modifying a previous maintenance order when there has been a change of circumstances116 or to reject its jurisdiction based on the fact that the creditor has moved to another Member State.117 It also served for a court to establish its jurisdiction, despite not being the court that issued the first decision, as the creditor did not live in the country of origin.118

iv.  Subsidiary Jurisdiction and Forum Necessitatis To avoid a denial of justice when no Member State court could otherwise be seised, the Maintenance Regulation provides two alternatives. The first is a subsidiary jurisdiction principle. It is located in Article 6 and provides that when no state, being Member to the Regulation or the Lugano Convention, has jurisdiction but the parties have a common nationality, the court of that country can be seised. The second option, in Article 7, constitutes a step further and provides that any Member State that has a sufficient connection with a case can be seised if no other Member State has jurisdiction according to the Regulation. Neither of these possibilities seem to be regularly applied in practice.119

C.  Selected Difficulties Related to the Application of the Regulation The study has demonstrated various setbacks to the application of the Maintenance Regulation in practice. The major impediments regarding jurisdiction are discrepancies with other instruments (A), misapplication by national court (B) and the fact that there is no hierarchy among the fora offered (C).

116 OLG Koblenz, 18 March 2015, 13 UF 825/14, DES20150318. 117 OLG Düsseldorf, 25 April 2012, 8 UF 59/12, DES20120425. The original decision was taken in Germany but both parties moved to Spain. 118 The creditor and defendant to the case did not have its habitual residence in Germany where the original order was issued. AB v JJB [2015] EWHC 192 (Fam). 119 There is only one case which refers to Art 7 in the EUFam’s project database but the Court declined jurisdiction (BGH, 14 October 2015, XII ZB 150/15, DET20151014). Same regarding Art 6 with the case OLG Koblenz, 18 June 2014, 13 WF 564/14, DES20140618.

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i.  Inconsistencies with Brussels IIa The main complication that appears in legal practice is the fragmentation of family matters Regulations and the difficulties it creates in their application.120 In addition to the grounds of jurisdiction being set in different instruments, there is a lack of consistency. As an example, the Brussels IIa Regulation provides for six grounds of jurisdiction based on habitual residence, and one on nationality,121 while the Maintenance Regulation only relies on two grounds linked to habitual residence (of the debtor and of the creditor).122 It additionally offers the possibility to seise the court having jurisdiction over matrimonial matters or parental responsibility.123 As a consequence, there is no guarantee that only one court has jurisdiction. This is, for example, the case when the court seised for divorce is the court of nationality as this option does not exist for maintenance.124 The opportunity to join proceedings through ancillarity to a matrimonial dispute is also proscribed by the Regulation.125 Apart from the temporal and economic costs incurred when carrying out proceedings in different Member States related to the same parties and the same closely connected aspects of the same dispute,126 there is also a significant risk of irreconcilable decisions which contradicts the overall objective of those instruments.127 Another inconsistency between the different instruments also appears regarding party autonomy. While the Maintenance Regulation prevents choice of court related to maintenance towards children, Brussels IIa supports the opposite approach by offering a possibility to prorogate jurisdiction only for those cases.128 No justification has been found to explain that discrepancy in the available legislative documentation. The operation of Article 4 Maintenance Regulation (choice of court for maintenance) is undermined by the absence of a possibility of choosing the court for divorce proceedings in Brussels IIa. Indeed, parties who decide to join the maintenance claim to the divorce proceedings end up with greater insecurity due to the absence of certainty regarding divorce forum. It creates an enhanced ‘rush to court’ when the divorce court is chosen to deal with maintenance since the court first seised for divorce will receive competence for both matters. Parties who desire certainty for maintenance might opt for the other grounds offered by Article 4: the court of nationality or habitual residence, but they might subsequently miss the opportunity of bringing the proceedings to the same court since the chosen court might not have jurisdiction regarding divorce.

120 Report on Internationally Shared Good Practices (n 43) 39 and Walker, Maintenance (2015) 56–65. 121 Brussels IIa Regulation, Art 3. 122 Maintenance Regulation, Art 3 (a) and (b). 123 Art 3 (c) and (d). 124 Unless a choice of court has been made based on art 4(b). 125 Art 3(c) Maintenance Regulation proscribes the consolidation of proceedings when the divorce court has been seised based on the nationality of one of the parties. 126 Specialised legal advice required in different Member States, due to multiple proceedings and the risk of rush to court, multiplies costs which can consequently reach up to 15 000 EUR according to the Study on the assessment of Regulation (EC) No 2201/2003 and the policy options for its amendment (European Commission, May 2015) 260. 127 On the objective of the different instruments applicable in the maintenance field see Hellner, ‘The Maintenance Regulation’ 343–46. 128 Art 12 of Brussels IIa (see Pataut, ‘Article 12’ 150–67).

Jurisdiction  185 While the related final decision might be compatible, it accentuates the difficulties related to parallel proceedings such as time and an increase in costs.

ii.  Alternative Grounds of Jurisdiction Beside the lack of consistency, an additional difficulty arises from the fact that the different grounds of jurisdiction are set alternatively in the Maintenance Regulations. It means that none of the jurisdictions designated prevail and that parties get an opportunity to opt for any of the possibilities listed. Since families covered by European instruments characteristically have cross-border features (and sometimes live in different EU Member States), those grounds usually point towards different countries. The outcome is a lack of certainty regarding the court to be seised and therefore undermines predictability as well as legal security. As a consequence, the so-called practice of ‘rushing to court’ is encouraged since a better informed party can seise the most advantageous court and oblige other courts to decline jurisdiction due to the functioning of the lis pendens rules.129 This risk is especially significant since the conflict of laws rules are currently set by The Hague Protocol to which some Member States are not parties.130 Some courts will therefore apply their national conflict rules, which might differ from the European solution, and offer a result which favours one of the spouses.131 As an example, common law countries favour the application of the lex fori rather than applying applicable law provisions.132 Consequently, an English court will apply English law; even though such law might not correspond to the law of the place of residence of the creditor which would have applied under the 2007 Hague Maintenance Protocol system.133 As well as the risk of rushing to court, the absence of hierarchy also leads to practical difficulties for parties but also for specialists such as judges and legal practitioners. It indeed happens that a court is seised but does not know whether it should accept jurisdiction since other jurisdictions could be competent according to the Regulation. If a maintenance claim regarding children occurs concomitantly to parental responsibility proceedings, the Court of Justice has nevertheless stepped in to clarify that such court should be the one having jurisdiction.134

129 Commission (EC), ‘Commission Staff Working Document, Impact Assessment, accompanying the document Proposal for a Council Regulation on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast)’ (SWD/2016/0207 final – 2016/0190 (CNS)) 14. 130 The United Kingdom and Denmark. 131 An Article from the French Journal Le monde highlighted a similar situation regarding the rush to, or away from, British courts, well-known as a hub for getting divorced, mostly chosen by wealthy women. See: www.lemonde.fr/referendum-sur-le-brexit/article/2016/07/08/le-brexit-inquiete-les-hommes-fortunes-eninstance-de-divorce_4966171_4872498.html. 132 W Duncan, ‘The New Hague Maintenance Convention and Protocol’ (2008) X YBPrIL 313.327. 133 Following the general provision set in Art 3. 134 Case C-184/14 A v B [2015] ECLI:EU:C:2015:479. The preliminary question was brought up by the Italian Corte di Cassazione (Cass, 7 April 2014 No 8049, ITT20140407). The facts were: Two Italians were divorcing in Italy although they lived with their children in London. The English court therefore had jurisdiction regarding parental responsibility. In this case, it was not clear to the court whether the maintenance questions concerning the children were to be considered ancillary to the divorce proceedings (Italy) or to the parental responsibility case (the United Kingdom).

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iii.  Misapplication in Practice The absence of coherence between the different EU Family Law Regulations renders their understanding and application difficult for parties but also for legal practitioners and judges especially when a situation is connected to different states.135 The case law collected demonstrates that many courts consolidate proceedings without verifying their competence and therefore without correctly establishing their jurisdiction.136 Maintenance disputes are particularly affected by this difficulty as the claim often arises in the context of other proceedings for divorce or parental responsibility. As a result, some courts and tribunals primarily seised on divorce and/or parental responsibility, concomitantly decide on maintenance without correctly referring to the corresponding Regulation.137 Other courts decline jurisdiction without checking every possibility offered by Article 3 of the Maintenance Regulation.138 In this constellation, proceedings are multiplied and lengthened. Courts also seem embarrassed when they have to assume jurisdiction based on two different grounds, hesitating about which to apply.139 When judges do apply the instrument correctly, complications have occurred regarding the interpretation of the indents of Article 3 of the Maintenance Regulation on proceedings related to a divorce and parental responsibility dispute. It resulted in a ruling by the CJEU which established that maintenance claims concerning children should be considered as ancillary to the parental proceedings only and therefore could only be brought to that Court, excluding the divorce forum.140

135 It often concerns parties of different nationalities who live in a country together but move back to their state of origin at the end of their relationship (see Trib Tivoli, 6 April 2011, ITF20110406, OS Trenčín, 12 October 2016, 34P/140/2016, SKF20161012). 136 cf inter alia (Tribunal Supremo, 10 June 2015, EST20150610; Audiencia Provincial Murcia, 10 October 2013 No 598/2013, ESS20131010; Trib Milano, 11 December 2012, ITF20121211; KS v Českých Budějovicích, 5 April 2011, 5 Co 781/2011, CZS20110405; Monomeles Protodikeio Grevenon, 9 September 2013, ELF20130909; Районен съд – Казанлък, 23 July 2014, BGF20140723; Cour d’Appel de Caen, 29 September 2016 No 15/03300, FRS20130929b. 137 In practice, only 36% of respondents to the EUFam’s project online questionnaire considered that Art 3 is being correctly referred to by courts and tribunals (Report on the Outcome of the Online Questionnaire (n 99) 21). Numerous cases in the EUFam’s project database also demonstrate it (inter alia Audiencia Provincial Murcia, 10 October 2013 No 598/2013, ESS20131010; Audiencia Provincial Barcelona, 23 July 2015 No 549/2015, ESS20150723; Trib Pavia, 20 August 2015, ITF20150820b; Trib Roma, 18 December 2015, ITF20151218; Trib Milano, 11 December 2012, ITF20121211; KS v Českých Budějovicích, 5 April 2011, 5 Co 781/2011, CZS20110405; Općinski sud u Šibeniku, 19 October 2016, 38 POb-24/16, CRF20161019; OS Dunajská Streda, 4 March 2014, 9P/88/2013, SKF20140304; Monomeles Protodikeio Grevenon, 9 September 2013, ELF20130909; Районен съд – Казанлък, 23 July 2014, BGF20140723; Cour d’Appel de Caen, 29 September 2016 No 15/03300, FRS20130929b; Cour d‘Appel d‘Aix-en-Provence, 1 September 2016 No 15/19977, FRS20160901). In parallel, 11% of respondents have witnessed the Regulation being completely ignored despite maintenance questions being at stake (Report on the Outcome of the Online Questionnaire (n 99) 21). 138 See at the EUFam’s project database: OS Rimavská Sobota, 13 November 2013, 2P/173/2012, SKF20131113; OS Veľký Krtíš, 21 November 2014, 7P/148/2014, SKF20141121. 139 See at the EUFam’s project database: Audiencia Provincial de Barcelona, 22 May 2014 No 341/2014, ESS20140522. 140 Case C-184/14 A v B (n 134).

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D.  Recommendations ‘de lege ferenda’ Despite the difficulties mentioned above, the current operation of the Maintenance Regulation appears less problematic than other instruments such as Brussels IIa. Indeed, in practice, permitted avenues for rushing to court are quite limited. Although Article 3 of the Regulation provides for several alternative grounds of jurisdiction, they are more restricted than for divorce matters (Brussels IIa) and the choice-of-court option reduces rush to court. Additionally, it should be noted that the party considered as ‘weaker’ in maintenance cases is normally the claimant. That is due to the alleged economic imbalance of the claimant in comparison to the defendant. As a result, the establishment of alternative grounds of jurisdiction in this area is not as problematic as concerning matrimonial matters. In this regard, the current design of the grounds of jurisdiction in the Maintenance Regulation should be kept. However, difficulties regarding the operation of Articles 3 and 4 of the Maintenance Regulation are particularly problematic in two situations. First, when the divorce court has been seised based on the nationality of the parties: Article 3(c) does not allow the spouses to bring their maintenance claim to that forum. Secondly, the possibilities of consolidation offered are set in two separate options, (c) and (d): an a priori combination of both sets of rules is not possible in order to give jurisdiction to one court to deal with all the claims. Those difficulties could be countered by adding a rule permitting the transfer of jurisdiction. Such provision would allow consolidation, ex-post. It entails that when proceedings concerning a specific claim are at an early stage in the court of one Member State while other related claims are taking place in the courts of another state, the judge could decide to transfer the latter in order to concentrate proceedings. This mechanism would have to be applied only if certain conditions were met: its application would require the request of one of the parties and an assessment of the interests of justice at stake.141 Moreover, if among the involved claims there was one related to parental responsibility, the best interests of the child would have to be taken into consideration.142 A transfer mechanism also presupposes a close communication among judges in collaboration with the parties involved in the proceedings. The ideal scenario would be to reach a common decision concerning jurisdiction by the judges seised with different claims regulated by different family law instruments but related to the same parties. Any modification to the text would however necessitate preliminary evaluation and assessment steps to be taken by the European Commission. Unfortunately, while the review clause contained in the Maintenance Regulation entails a Report on its application by June 2016, at the latest,143 no formal evaluation process seems to have been

141 It should be observed that consolidation is not always appropriate. The judges involved should consider if consolidation is really needed in order to solve the claims in terms of substance, taking into account that the parties involved in the different ongoing proceedings are the same and the subject matters of their disputes fall within family law and, therefore, might be connected to a certain extent. 142 In this vein, the CJEU has already stated that the best interest of the child should be assessed when jurisdiction over maintenance claims is exercised by virtue of Art 3 (d) of the Maintenance Regulation (Case C-184/14 A v B (n 134) para 46). 143 Art 74.

188  Arantxa Gandía Sellens, Amandine Faucon Alonso and Philippos Siaplaouras started by the European Commission so far. As proposals for adaptation could only follow such evaluation, any substantial changes are not to be expected in the near future. A solution that does not entail substantive changes, but constitutes a key element for a better application of the Regulations and a swifter consolidation of proceedings, lies in the training of legal professionals so that they can advise and inform the parties as to the most efficient solution regarding the seising of a jurisdiction. Mediation should also be encouraged and, in that framework, professionals conducting such procedure should be properly trained and informed. They are indeed well placed to help parties reach an agreement on a single court to hear their claims.

E. Conclusion The Maintenance Regulation harmonises jurisdictional rules at EU level and thereby does facilitate the free movement of European citizens across Member States. When taken in isolation, the Maintenance Regulation seems to operate efficiently and does not create insurmountable problems. However, its application in practice appears more complicated when maintenance disputes are ancillary to primary proceedings on divorce or parental responsibility. The multiplication of instruments applicable to cross-border families and the absence of consistency between them often results in courts establishing jurisdiction through Brussels IIa, then ruling on maintenance without questioning their competence. The lack of dialogue among judges potentially involved is also an obstacle to a smooth application of European family instruments. In the long run, the different Regulations existing in the family field would benefit from being harmonised. However, as there is no recast foreseen by the European legislator in the near future, the best solution to avoid difficulties and ensure a swift movement of Europeans citizens and of judgments concerning them is to make sure legal professionals fully understand the Regulations and therefore apply them correctly. Enhanced communication between courts also appears as a plausible option to avoid multiplication of proceedings and thereby the complications it generates.

IV.  Selected Questions on Jurisdiction Related to the Succession Regulation A. Introduction The Succession Regulation has already applied for three years. During this first period of application, courts and practitioners have had to face some of the core procedural as well as substantive issues connected with the Regulation that accompany this ‘mixed’ instrument. Some case law from the Member States – as the EUFam’s project database shows – has emerged, as well as some judgments from the CJEU. This early experience, however, has far from tackled most problems which had already been identified in the literature before the Regulation’s application began. In other words, the Succession Regulation, while adequately commented on, still lacks practical application and

Jurisdiction  189 doctrinal assessment. This section aims at shedding some light on these developments as far jurisdiction is concerned and at highlighting some problems still open, waiting to be resolved in the future. The concerned areas are habitual residence and choice-ofcourt agreements, jurisdiction for domestic certificates of succession and conflicts of jurisdiction.

B.  Ordinary Jurisdiction The Regulation provides for both a predefined system of jurisdiction as well as for a limited choice-of-court mechanism. The common rules on jurisdiction are an expected element of the EU’s legislative involvement, since European civil procedure forms an integral part of the Area of Freedom, Security and Justice based on the principles of mutual recognition and access to justice, as provided by Articles 67(4) and 81(1) TFEU. The existence of common and foreseeable rules as regards judicial competence serves both purposes (cf recitals 3 ff). The ordinary system of jurisdiction is dominated by the connecting factor of habitual residence of the deceased person (Article 4 Succession Regulation). The same connecting factor is used as the default rule to determine the applicable law (Article 21 Succession Regulation) thus establishing what is being referred to as the parallelism (Gleichlauf) between procedure and substance in matters of succession.144 While on an abstract level this legislative choice seems to introduce a single, straightforward criterion to locate the competent court for the succession as a whole,145 it is obvious that habitual residence is a rather vague concept.146 The European legislator provides some interpretative aid in recitals 23–25. Nevertheless, the concept remains undefined and open to interpretation. It is therefore not surprising that most scholars who have commented on the provisions of the Succession Regulation have tried either to formulate indicators for habitual residence or to give concrete examples of difficult constellations where habitual residence is to be accepted or negated. Examples often recalled in this context involve pensioners spending a large part of their time in the European South, students spending one or several semesters at a university abroad, people commuting daily over borders to get to their job or people being relocated to another country for therapeutic purposes.147 The answers usually given in such cases focus on familial and socio-economic ties: if the latter remain in the state of origin, then habitual residence lies in the state of origin despite the move.148 Apart from these 144 AL Calvo Caravaca, ‘Article 4’ in AL Calvo Caravaca et al (eds), The EU Succession Regulation (Cambridge, Cambridge University Press, 2016) para 9 subpara 6; F Wall, ‘Vermeidung negativer Kompetenzkonflikte im Zuständigkeitsrecht der Artt. 4 ff EU-ErbVO’ (2014) ZErb 272. This is also noteworthy since there is no general correspondence of forum and ius in cross-border constellations, see R Geimer, Internationales Zivilprozessrecht, 7th edn (Cologne, Otto Schmidt, 2015) para 39. 145 The procedural and substantive provisions of the SR concern succession as a whole and do not differentiate between movable and immovable property, see H Gaudemet-Tallon, ‘Les règles de compétence judiciaire dans le règlement européen sur les successions’ in G Khairallah and M Revillard (eds), Droit européen des successions internationales (Paris, Defrénois, 2013) para 296. 146 Calvo Caravaca, ‘Article 4’ para 12. 147 B Hess, ‘Die internationale Zuständigkeit nach der Erbrechtsverordnung’ in A Dutta and S Herrler (eds), Die europäische Erbrechtsverordnung (Munich, CH Beck, 2014) 135. 148 Hess, ‘Die internationale Zuständigkeit’ 135 f.

190  Arantxa Gandía Sellens, Amandine Faucon Alonso and Philippos Siaplaouras objective factors, subjective ones, ie the will to acquire a new habitual residence, need to be present as well.149 While the CJEU has not yet had the opportunity to rule on the matter, nor are any relevant preliminary questions pending (yet), some national case law has already emerged. The Kammergericht (KG) decided in a fashion similar to what had been proposed in literature.150 The court had to rule on account of a succession of a person who had moved from Germany to Poland, while his family and all other professional and social relationships remained in Germany. Moreover, the deceased regularly visited Germany and maintained a part-time job there while also receiving his pension from Germany, had almost no contacts with the locals in Poland, had not integrated into local life and did not speak any Polish. Thus, the court confirmed that the deceased was habitually residing in Germany. The Kammergericht also noted that the concept of habitual residence has to be interpreted in correspondence with the CJEU’s case law on habitual residence in Brussels IIa.151 The Cour d’Appel de Paris recently had the chance to interpret the relevant provisions of the Regulation in order to determine the habitual residence of a deceased person who was sharing his time between New York and Paris.152 The Court concluded that the deceased was not habitually residing in France by examining an extensive catalogue of indicators including the deceased’s nationalities, the fact that he was born in New York, spent his entire professional career and paid his taxes there, voted regularly in New York, the fact that he stated himself in his testament that he was a resident of New York, the time spent by the deceased in each country, the presence of a landline telephone connection in Paris, electricity bills and even the way his grandchildren used to call him. Both judgments demonstrate the importance of said socio-economic indicators, especially familial and professional relationships. They also tacitly imply the subjective element required, since the will to relocate one’s habitual residence is inferred from the social and professional connections someone retains or establishes in a new habitual residence. Another dimension of the Regulation’s application is the involvement of authorities which do not constitute courts stricto sensu, most commonly notaries. These authorities are also bound by the Regulation insofar as they are involved in the succession proceedings. The EUFam’s project database includes such a case, where a notary in Croatia needed to ascertain his jurisdiction over the case of a deceased Croatian citizen who, after having spent 25 years in Germany, returned to Croatia where the rest of his family had been all along. The Croatian notary decided that habitual residence was in Croatia.153

149 H Pamboukis and AP Sivitanidis, ‘Article 4’ in H Pamboukis (ed), EU Succession Regulation No 650/2012 (Athens, Nomiki Vivliothiki – CH Beck – Hart – Nomos, 2017) para 8. 150 KG, 26 April 2016–1 AR 8/16 (2016) Praxis der Freiwilligen Gerichtsbarkeit 181. 151 See Hess (n 147) 134. 152 Cour d’Appel de Paris, Chambre 1, 7 March 2018 No 17/13293 (Dalloz). 153 See from the EUFam’s project database: Case Općinski građanski sud u Zagrebu 6 June 2016, O-1895/16, CRF20160606. Another case where a Croatian notary applied the Succession Regulation to establish jurisdiction is Općinski sud u Bjelovaru, SS u Garešnici 27 May 2017, O-3199/15-9, CRF20160527. On the other hand, another Croatian court/notary did not apply the Succession Regulation, see case Općinski sud u Vukovaru 17 February 2016, O-2543/15, CRF20160217.

Jurisdiction  191 Article 4 of the Succession Regulation only determines international jurisdiction, while territorial competence and subject-matter competence are reserved to national law.154 This, however, does not preclude an approximation of domestic rules at the initiative of the Member States. An example of extension of the scope of the Regulation’s ratio to domestic procedure is provided by the German legislator who, in view of Article 4 of the Succession Regulation, amended section 343(1) of the German Law on Proceedings in Family Matters and in Matters of Voluntary Jurisdiction (FamFG) in order to adopt the rule of habitual residence for the determination of territorial jurisdiction inside Germany as well.155 In this regard the Oberlandesgericht (OLG) München explicitly stated that the interpretation of said provision has to correspond with the interpretation followed for Article 4 of the Regulation, including the Regulation’s recitals, even when dealing with purely domestic succession constellations.156

C.  Choice of Court The Succession Regulation introduced the possibility of a choice-of-court agreement, albeit subject to strict conditions. This is consequent from the above-mentioned goal of maintaining a Gleichlauf between substance and procedure. The Regulation allows for choice-of-court agreements not for the sake of party autonomy as such, but it is envisaged as another tool to restore the forum/ius parallelism.157 The provision allows the ‘parties concerned’158 (not the deceased) to choose the courts of the deceased’s nationality provided the latter has chosen the law of her/his nationality as applicable to her/his succession (Article 5(1) Succession Regulation). Such an agreement has to be expressed in writing, dated and signed by the concerned parties, while any communication by electronic means which provides a durable record of the agreement is sufficient (Article 5(2) Succession Regulation). In accordance with the pursuit of Gleichlauf, if the deceased has made a choice of law, the Regulation allows for courts to decline jurisdiction in favour of the courts of the Member State of choice if requested by a party (Article 6(a) Succession Regulation). Moreover, the Regulation allows the courts of the said Member State to adjudicate the case if the parties expressly agree so (Article 7(c) Succession Regulation). Added to this, the Regulation allows for jurisdiction to be founded on appearance in some limited cases (Article 9 Succession Regulation). Even from this short description of the Regulation’s choice-of-court regime, certain problems become evident. Who are the ‘interested parties’? What kind of signature is required if the agreement is concluded by electronic means? What is the difference

154 A Bonomi, ‘Article 4’ in A Bonomi/P Wautelet (eds), Le droit européen des successions (Brussels, Larcier, 2016) para 13. 155 This amendment was effected by the Law of 29 June 2015 [2015] Bundesgesetzblatt I 1042. 156 OLG München, Beschluss vom 22.3.2017–31 AR 47/17 (2017) ZEV, 333 (with case note by B Rentsch). 157 D Leipold, ‘Gerichtsstandsvereinbarungen nach der Europäischen Erbrechtsverordnung’ in K Muscheler/R Zimmermann (eds), Zivilrecht und Steuerrecht, Erwerb von Todes wegen und Schenkung, Festschrift für Jens Peter Meincke zum 80. Geburtstag (Munich, CH Beck, 2015) 219, 222. 158 Art 5(1) reads: ‘Where the law chosen by the deceased to govern his succession pursuant to Article 22 is the law of a Member State, the parties concerned may agree that a court or the courts of that Member State are to have exclusive jurisdiction to rule on any succession matter’.

192  Arantxa Gandía Sellens, Amandine Faucon Alonso and Philippos Siaplaouras between a formally concluded choice-of-forum agreement pursuant to the requirements laid down by Article 5 of the Succession Regulation and jurisdiction founded on express agreement of the parties in accordance with Article 7(c) of the Succession Regulation? These are both legal and practical questions. When trying to reach a choice-offorum agreement, it may well be the case that not all interested parties are known at the point when such an agreement is about to be concluded.159 Even if they are known, it is not uncommon that they may not be on the best of terms, let alone be willing to agree on the forum.160 These not-so-unlikely circumstances make the choice of the European legislator to exclude the deceased from choosing the forum questionable.161 Moreover, they render the provisions on choice of court impractical and they are not expected to be used extensively.162 The express need for a signature has also puzzled scholars as to whether a digital signature is needed when the agreement is concluded by electronic means or not.163 However, the choice of the Succession Regulation to include the signature as a separate, enumerated condition leaves little space for any other interpretation, considering especially the explicit departure from a Brusselslike wording in this respect (cf for example the adoption of Brussels-like rules on pendency).164 Some scholars have also doubted whether the choice-of-court provisions of the Succession Regulation apply to proceedings of voluntary jurisdiction: while the Succession Regulation as a whole does not distinguish between contentious and non-contentious procedures, scholars have doubted the compatibility of such clauses with the nature of non-contentious proceedings.165 In my view, these doubts cannot be followed in light of the structure of the Regulation, which consciously (cf Recital 59) regulates the issue of jurisdiction in a unified manner. However, in order to define which parties will be able to conclude a choice-of-court agreement with respect to non-contentious proceedings, a certain departure from the classic notion of a ‘party’ in civil procedure has to be made. Whereas the formal conception of a party is appropriate when dealing with contentious proceedings,166 it is not helpful in cases of voluntary jurisdiction: formally there may only be one party (eg a sole applicant) even while there are other affected persons who are not necessarily parties in the formal sense. Thus, a wide notion of ‘party’ is needed in order to delineate the persons capable of concluding a choice-of-court agreement in such proceedings, ie all persons affected by the outcome of the proceedings.167

159 FB Buoaniuti, ‘Article 5’ in AL Calvo Caravaca et al (eds), The EU Succession Regulation (Cambridge, Cambridge University Press, 2016) para 10. 160 cf Hess (n 147) 137. 161 ibid. 162 Hess, Mariottini and Camara, ‘Regulation (EC) n. 650/2012 Note’ 11. 163 Buoaniuti, ‘Article 5’ para 15; Gaudemet-Tallon, ‘Les règles de compétence’ para 289. 164 A Bonomi, ‘Article 5’ in A Bonomi and P Wautelet (eds), Le droit européen des successions (Brussels, Larcier, 2016) paras 12 ff. 165 Leipold, ‘Gerichtsstandsvereinbarungen’ 230; R Magnus, ‘Gerichtsstandsvereinbarungen im Erbrecht?’ (2013) IPRax 393, 395 ff. These arguments are related to the structure of German non-contentious proceedings. 166 A Dutta, ‘EuErbVO Art. 5’ in FJ Säcker et al (eds), Münchener Kommentar zum BGB, 7th edn (Munich, CH Beck, 2018) para 7. 167 Dutta, ‘EuErbVO Art. 5’ para 8.

Jurisdiction  193 The European legislator himself has tried to soften the difficulties of the rules governing choice of court: Article 9 of the Succession Regulation, which deals with jurisdiction founded on appearance, would be the most representative example. The provision applies only in very specific circumstances, namely when some of the ‘interested parties’ were not party to a choice-of-court agreement and they do appear but do not contest the jurisdiction of the seised courts. While Article 9 of the Succession Regulation cannot serve as a ground for jurisdiction beyond the narrow aim of reestablishing the forum/ius parallelism (unlike Article 25 Brussels Ia), it can nevertheless ameliorate the issue of not knowing beforehand all the people involved in the inheritance.168 Another issue pointed out by scholars is whether jurisdiction by appearance also applies when jurisdiction is founded on the express acceptance of the court by the parties (Article 7(c) Succession Regulation), a choice-of-court option distinct from the formal choice of court pursuant to Article 5.169 It is rather obvious that accepting this wider applicability of Article 9 of the Succession Regulation will smooth the application of the – already complex – relevant provisions and is therefore to be lauded, especially when taking into account that Article 7(c) is a rather flexible and easy way of establishing jurisdiction by choice between the ad hoc litigating parties compared to Article 5.

D.  Judicial Communication and Cooperation between Courts One of the main drawbacks of the new Regulation pointed out by scholars is the lack of explicit provisions on flexible mechanisms of direct communication and cooperation between judges, courts and otherwise competent authorities with respect to succession.170 Instead, the Succession Regulation has opted to include classic procedural tools like pendency, related actions and recognition of judgments, more or less following the scheme of the Brussels system. Nevertheless, in a system where there is basically one ground for jurisdiction, conflicts can be easily solved or even prevented with the use of such communication channels.171 In light of the Regulation’s ratio to facilitate the rapid and smooth settlement of intra-European successions (Recital 67), the most consequent interpretative solution is to assume that, whereas the Succession Regulation does not positively enhance cooperation, it does not prohibit it either. An example of this is provided by the EUFam’s project database, where a Croatian notary, after having established his own jurisdiction, contacted the German court to ensure that no proceedings had been initiated there because the deceased had a bank account there.172

168 Hess (n 147) 138. 169 In favour of the applicability A Dutta, ‘EuErbVO Art. 9’ in FJ Säcker et al (eds), Münchener Kommentar zum BGB, 7th edn (Munich, CH Beck, 2018) paras 3 ff; Leipold (n 157) 231; against A Bonomi, ‘Article 9’ in A Bonomi and P Wautelet (eds), Le droit européen des successions (Brussels, Larcier, 2016) para 3. 170 Hess (n 147) 142. 171 ibid 141. 172 See at the EUFam’s project database: Case Općinski građanski sud u Zagrebu 6 June 2016, O-1895/16, CRF20160606.

194  Arantxa Gandía Sellens, Amandine Faucon Alonso and Philippos Siaplaouras

E.  Jurisdiction and Domestic Certificates of Succession An interesting question which relates to the scope of application of the Regulation’s jurisdictional rules was recently brought forward by a German court by submitting a question for preliminary ruling to the CJEU:173 while the Regulation introduces the European Certificate of Succession (ECS), it does not abolish the existing national certificates or other similar instruments, as expressly foreseen by Article 62 (2) and (3) of the Succession Regulation. This situation may give rise to conflicts. For the purposes of this chapter, however, the interesting question is whether Article 4 of the Regulation applies when an application for a national certificate is filed. In other words, does the national court or authority issuing a national succession certificate have to abide by the jurisdictional provisions of the Succession Regulation? The question has divided both academics and courts. One position is that international jurisdiction for national certificates is regulated by the Succession Regulation.174 The main arguments for this position are a wide understanding of what ‘decision’ means under the Succession Regulation and the avoidance of irreconcilable decisions caused by the application of national rules on jurisdiction.175 The fact that the Succession Regulation does not distinguish between contentious and voluntary jurisdiction constitutes a further argument,176 at least for those Member States where judicial certificates are issued in non-contentious proceedings.177 The second position supports retaining national rules on jurisdiction for domestic certificates.178 In this context, authors claim that domestic certificates are not ‘decisions’ within the meaning of the Succession Regulation and that the option between national certificates and the ECS is factually undermined when applying the European provisions on jurisdiction for national certificates.179 It is argued that such a domestic certificate may differ so much in its effects that it may be practically impossible to use it in the Member States where the assets are located, or that a certificate may not be known at all in the Member State of habitual residence.180 As far as case law is concerned, while the Kammergericht leans to the second position,181 the OLG Hamburg has decided in favour of the first.182 173 Kammergericht, 10 January 2017–6 W 125/16 (2017) ZEV 213 with case note by D Leipold. 174 A Dutta, ‘Vorbemerkung zu Art. 4 EuErbVO’ in FJ Säcker et al (eds), Münchener Kommentar zum BGB, 7th edn (Munich, CH Beck, 2018) para 5; M Fornasier, ‘Artikel 62’ in A Dutta and J Weber (eds), Internationales Erbrecht (Munich, CH Beck, 2016) para 15; E Lein, ‘Vorbemerkung zu Art. 4ff. EuErbVO’ ibid para 31; Leipold (n 173) 216 ff; also D Leipold ‘Die internationale Zuständigkeit für die Ausschlagung der Erbschaft nach EuErbVO und IntErbRVG’ (2015) ZEV 553, 557 ff; J Schmidt, ‘Der Erbnachweis in Deutschland ab 2015: Erbschein vs. Europäisches Nachlasszeugnis’ (2014) ZEV 389, 390 f. 175 Leipold (n 173) 217 f. 176 Schmidt, ‘Der Erbnachweis’ 390. 177 For an overview of national certification systems see B Laukemann, ‘The European Certificate of Succession: Portrait of a New Instrument in European Private International Law’ in B Hess et al (eds), EU Civil Justice (Oxford and Portland, Hart, 2016) 161, 163 f. 178 H Dörner, ‘Die internationale Zuständigkeit zur Ausstellung eines deutschen Erbscheins’ (2017) DNotZ 407; R Geimer, ‘Artikel 4 EuErbVO’ in Zöller Zivilprozessordnung, 32nd edn (Cologne, Otto Schmidt, 2018) para 10; F Wall, ‘Richtet sich die internationale Zuständigkeit zur Erbscheinserteilung künftig ausschließlich nach Artt. 4 ff EU-ErbVO?’ (2015) ZErb 9; J Weber and C Schall, ‘Internationale Zuständigkeit für die Erteilung deutscher Erbscheine: (k)eine Frage der Europäischen Erbrechtsverordnung?’ (2016) NJW 3564. 179 Wall, ‘Internationale Zuständigkeit’ 10 ff, 12 ff; Weber and Schall, ‘Internationale Zuständigkeit’ 3565 ff. 180 Wall (n 178) 14. 181 Kammergericht (n 173). 182 OLG Hamburg, 16 November 2016–2 W 85/16 (2017) FGPrax 129.

Jurisdiction  195 The CJEU delivered its judgment on 21 June 2018 and sided with the first position.183 Advocate General (AG) Szpunar had already concluded in his opinion delivered on 22 February 2018 that Article 4 of the Succession Regulation should apply for national certificates as well.184 The two main arguments against the applicability of Article 4 of the Succession Regulation on national certificates which the AG had to tackle were: firstly, national certificates are not ‘decisions’ within the meaning of the Regulation.185 Secondly, by requiring jurisdiction to be given on the basis of the Regulation, the courts of the same Member State are the only courts competent to issue both European and national certificates. This may lead to a de facto obligatory European certificate,186 which contradicts the explicit provision of the Regulation. Finally, it was argued that since the Succession Regulation includes a special provision (Article 64) on jurisdiction for the ECS, it follows that Article 4 does not cover it. Assuming that national certificates and the ECS are similar instruments, national certificates are not covered by Article 4.187 The Advocate General, after having concluded that a strictly textual interpretation of the concepts ‘court’ (Article 3(2) Succession Regulation) and ‘decision’ (Article 3(1)(g) Succession Regulation) does not provide much help in solving the issue, resorted to the aid of systematic and teleological interpretation. From a systematic point of view, the AG pointed out that the Succession Regulation also regulates (Article 13) jurisdiction with regard to the acceptance of declarations regarding the succession, ie procedures which do not end in a ‘decision’.188 Moreover, the AG underlined that the ECS is, compared to the existing certificates, a new instrument of EU law, and having an explicit provision on jurisdiction safeguards clarity and unity of application in all Member States without the need to further elaborate on the legal nature of this new instrument.189 Finally, the AG noted that the primary goal of the Succession Regulation, ie the Gleichlauf of forum and ius, would be jeopardised if national jurisdictional rules governed national certificates while the applicable law on succession as a whole was still determined by the Succession Regulation.190 Proper and sound administration of justice also speak for the application of Article 4 instead of various national laws.191 In its judgment, the Court tried to interpret the scope of ‘ruling’ in Article 4 of the Succession Regulation. Pursuant to the observations of the submitting court regarding the nature of the proceedings, the CJEU examined whether decisions which only contain findings of fact and do not acquire res judicata qualify as ‘ruling’.192 After admitting that the textual approach was not of much help, the Court underlined Article 13 183 Case C-20/17 Vincent Pierre Oberle [2018] ECLI:EU:C:2018:485. The facts of the case concerned a French national, habitually residing in France, who inherited part of his father’s estate, which comprised assets both in France and in Germany. He petitioned the Amtsgericht Schöneberg to issue a certificate of succession according to German law because part of the estate was located in Germany (section 343 para 3 FamFG). 184 Case C-20/17 Vincent Pierre Oberle [2018] ECLI:EU:C:2018:89, Opinion of AG Szpunar (references are to the German version of the opinion). 185 ibid paras 44 ff. 186 ibid para 95. 187 ibid paras 86 ff. 188 ibid paras 79–80. 189 ibid para 90. Thus, even without this ‘clarification’, the ECS would have been covered by the Regulation’s provisions on jurisdiction either way, the same applying to domestic certificates, see Leipold, ‘Die internationale Zuständigkeit’ 558. 190 ibid para 105. 191 ibid para 112. 192 Case C-20/17 Oberle (n 183) paras 38 ff.

196  Arantxa Gandía Sellens, Amandine Faucon Alonso and Philippos Siaplaouras of the Succession Regulation in order to support the view that the rules on jurisdiction apply to any procedure, regardless of whether it concludes in a decision.193 The Court also noted that the Succession Regulation is applicable to both contentious and noncontentious proceedings. The AG’s opinion was extensively cited and the Court based its own decision ultimately on three arguments: the Court firstly pointed out that applying domestic rules with regard to national certificates contradicts the Gleichlauf objective of the Succession Regulation.194 Secondly, the Court stressed the need to avoid irreconcilable decisions and certificates in the different Member States.195 Finally, the judgment recalled the need to avoid a fragmentation of succession cases (unity of the proceedings regarding the estate) and underlined the interest of sound administration of justice within the EU.196 The conclusions of both the Court and the AG are convincing. Given that national certificates are going to be either recognised as decisions or accepted as authentic instruments (one or the other depending on their legal nature) pursuant to the Succession Regulation,197 leaving the regulation of international jurisdiction to the Member States only augments the risk of having conflicting national certificates or conflicting European and national certificates, all able to circulate throughout the Member States where the Succession Regulation is applicable. Of course, differing interpretation and/or application of the same rules on jurisdiction can still lead to conflicting certificates. However, being realistic, all that can be achieved is a minimisation of potential conflicts, not a complete extinction of them. In the field of European civil procedure, proper administration of justice on a pan-European level is not only a legitimate but also a primary concern for the European legislator. Establishing legislative measures that aim to minimise the circulation of conflicting instruments, and interpreting existing provisions in accordance with this aim, is an essential component of a properly functioning unified judicial area. The emphasis on the need to prevent such conflicts and on the objective of proper administration of justice within the EU, which is present both in the Court’s judgment and the AG’s opinion, is therefore to be lauded. Moreover, while the issuance of a certificate of succession may be barred in a Member State where the deceased was not habitually residing, provisional judicial measures in relation to specific assets in the territory of such states can still be applied for pursuant to Article 19 of the Succession Regulation, thus not depriving the interested party of provisional judicial protection until a certificate of succession (European or domestic) can be obtained from the competent courts.

F.  Positive and Negative Conflicts of Jurisdiction The Succession Regulation contains provisions on pendency, on related actions and on recognition of judgments (Articles 17, 18 and 39 ff). These are not expected to be 193 ibid para 42. 194 ibid para 52. 195 ibid paras 53 ff. 196 ibid paras 56 f. 197 A Dutta, ‘EuErbVO Art. 59’ in FJ Säcker et al (eds), Münchener Kommentar zum BGB, 7th edn (Munich, CH Beck, 2018) para 5; Laukemann, ‘European Certificate’ 168 ff.

Jurisdiction  197 interpreted differently than the corresponding provisions found in the Brussels I/Ia Regulations. The Regulation’s provision on the examination of jurisdiction, Article 15, exemplifies the European legislator’s procedural ‘hesitation’: instead of providing for a mechanism of referral to the competent courts, which would be a solution compatible with the concept of the AFSJ and mutual trust,198 the Succession Regulation opted to force the seised court to declare its lack of jurisdiction by its own motion and to leave the exact procedural consequence (eg dismissal of the action) to domestic law. Since there is only one main ground for jurisdiction in the Succession Regulation, the phenomenon of rushing to court as experienced in the Brussels IIa and Maintenance Regulation is not expected to occur. However, differing interpretation and/or application of the same provision, combined with the aforementioned lack of a referral mechanism, may lead two (or more) courts to both assume that they possess jurisdiction (positive conflict of jurisdiction) or that neither of them possesses jurisdiction (negative conflict of jurisdiction).199 A question that arises is whether the Succession Regulation provides for a tool to tackle the issue. Whereas it is clear that positive conflicts can be solved with pendency/res judicata, negative conflicts of jurisdiction can be much more tricky: when the courts of different Member States have different views as to which Member State habitual residence is located in, each rejecting its own jurisdiction, then res judicata is needed in order to bind the second court to the findings of the first.200 Nevertheless, if one is to rely on res judicata for procedural coordination in this sense, two further questions have to be answered: does res judicata produce its binding effect in crossborder cases as regards to procedural judgments, ie judgments ruling on procedural issues (such as jurisdiction) and not on the merits of the case?201 If the answer to this question is positive, one has to further determine the extent of this binding effect on the second court. In the case of jurisdiction, the issue at hand is whether the second court is bound only by the judgment’s operative part (ie where the court dismisses the action due to lacking jurisdiction) or also by the grounds supporting it (ie where the court may have determined that another court possesses international jurisdiction). These questions had been debated in literature on the Brussels regime. According to a first opinion, judgments dismissing an action on the grounds that the courts of another Member State have jurisdiction are binding for the courts of that other Member State.202 The arguments in favour of this opinion include the unity of the system of

198 cf Hess (n 147) 142. 199 A Dutta, ‘EuErbVO Art. 15’ in FJ Säcker et al (eds), Münchener Kommentar zum BGB (Munich, CH Beck, 7th edn 2018) para 3. 200 Wall, ‘Vermeidung negativer Kompentenzkonflikte’ 274; cf Dutta ibid. 201 Answered positively by P Schlosser, ‘Report on the Convention of 9 October 1978 on the Association of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland to the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters and to the Protocol on its interpretation by the Court of Justice’ [1979] OJ C59/71 para 191, albeit only as regards the rejection of jurisdiction by the first court. 202 P Gottwald, ‘VO (EU) 1215/2012 Art. 28’ in W Krüger and T Rauscher (eds), Münchener Kommentar zur ZPO, 5th ed (Munich, CH Beck, 2017) para 5; R Hüßtege, ‘Art. 28 EuGVVO’ in Thomas/Putzo Zivilprozessordnung, 39th ed (Munich, CH Beck, 2018) para 7; P Mankowski, ‘Art 26 Brüssel I-VO’ in T Rauscher (ed), Europäisches Zivilprozess- und Kollisionsrecht EuZPR/EuIPR (Munich, Sellier European Law Publishers, 2011) para 6.

198  Arantxa Gandía Sellens, Amandine Faucon Alonso and Philippos Siaplaouras legal protection within the EU203 and, more importantly, the need to avoid negative conflicts of jurisdiction.204 The opposing opinion does not accept such a binding effect, either because procedural judgments are not capable of being recognised at all205 or, more importantly, because such a binding effect would go too far and establish a de facto referral mechanism, ie a mechanism which is not foreseen by the Brussels Regulation.206 As for the CJEU, the Court has answered these questions to the Lugano Convention. In the Gothaer case,207 the CJEU was confronted with a choice-of-court agreement providing for the exclusive jurisdiction of the courts of Iceland. However, Belgian courts were seised and delivered a final judgment affirming both their own lack of competence and the validity of the choice-of-court clause in favour of the Icelandic courts. When a second action was brought before German courts, the CJEU held that German courts were bound by both the ruling on the lack of competence and the positive confirmation of the competence of Icelandic courts. This judgment is interesting on multiple levels. Recognition in EU civil procedure is understood as the extension of effects, ie the law of the Member State of origin determines the subjective and objective effects of a judgment.208 In other words, currently there is no autonomous concept of the extent of res judicata in European civil procedure.209 In Gothaer, however, the CJEU introduced the notion of an autonomous concept as regards the objective effects of res judicata. In accordance with the extension-of-effects doctrine, the answer to the question of whether these effects were to be recognised would be dependent on whether (and to what extent) the law of origin allowed for procedural judgments to be covered by res judicata. However, for this very specific case of procedural judgments applying European rules of jurisdiction, the Court did not revert to the judgment’s law of origin.210 Instead, the Court confirmed the recognition of the effects of procedural judgments on the basis of an autonomous conception of how far this recognition should go, accepting that the second court is bound by the confirmation of validity of the choice-of-court agreement made by the court of origin in the grounds 203 Gottwald, ‘Art. 28’ para 5. 204 MR McGuire, Verfahrenskoordination und Verjährungsunterbrechung im Europäischen Zivilprozessrecht (Tübingen, Mohr Siebeck, 2004) 167. The opponents of such recognition propose a forum necessitatis as a solution to negative conflicts of jurisdiction, see R Geimer, ‘Die Prüfung der internationalen Zuständigkeit’ (1986) WM 117, 122 f. 205 R Geimer, ‘Art. 32 EuGVVO’ in R Geimer and R Schütze (eds), Europäisches Zivilverfahrensrecht, 3rd edn (Munich, CH Beck, 2010) para 16. 206 R Geimer, ‘Europaweite Beachtlichkeit ausländischer Urteile zur internationalen Unzuständigkeit?’ in R Geimer/R Schütze (eds), Recht ohne Grenzen, Festschrift für Athanassios Kaissis zum 65. Geburtstag (Munich, Sellier European Law Publishers, 2012) 287, 292, 298; McGuire, Verfahrenskoordination 167 f; H Roth, ‘Europäischer Rechtskraftbegriff im Zuständigkeitsrecht?’ (2014) IPRax 136, 139; A Stadler, ‘Art. 36 EuGVVO’ in HJ Musielak and W Voit (eds), Zivilprozessordnung, 14th edn (Munich, Franz Vahlen, 2017) para 2. 207 Case C-456/11 Gothaer Allgemeine Versicherung AG and Others v Samskip GmbH [2012] ECLI:EU:C:2012:719. 208 Case 145/86 Horst Ludwig Martin Hoffmann v Adelheid Krieg [1988] ECR 645, ECLI:EU:C:1988:61 paras 10 f; P Franzina, ‘The Recognition of Member State Judgments’ in A Dickinson and E Lein (eds), The Brussels I Regulation Recast (Oxford, Oxford University Press, 2015) paras 13.28 ff. 209 H Roth, ‘Europäischer Rechtskraftbegriff im Zuständigkeitsrecht?’ (2014) IPRax 136, 137. 210 Franzina, ‘Recognition’ paras 13.51 ff. Cf also C Althammer and M Tolani, ‘Neue Perspektiven für einen gemeineuropäischen Rechtskraftbegriff in der Rechtsprechung des EuGH zur EuGVVO?’ (2014) ZZPInt 227, 244.

Jurisdiction  199 supporting the operative part of the judgment.211 The idea of using the Court’s approach in Gothaer to solve conflicts of jurisdiction in the system of the Succession Regulation has been proposed by Wall on the basis of three arguments:212 firstly, the provisions on recognition of the Succession Regulation are based on the same principles as those of the Brussels Regulation, ie mutual trust regarding the application of common rules on jurisdiction, and should not be regarded as separate and independent regulatory systems. Secondly, this solution is mandated by effective judicial protection and the sound administration of justice. Thirdly, the Succession Regulation already contains a similar solution in Article 7(a), if the first court seised has declined jurisdiction pursuant to Article 6 of the Succession Regulation. The CJEU has not yet faced a situation like this in its case law so one cannot know whether the Court will follow the same path in a similar succession case. The EUFam’s project database does not show any national cases on the matter either. It is, of course, possible to disagree in principle with the argumentation of the Court, ie with the idea of abandoning in concreto the extension-of-effects doctrine.213 However, Gothaer is settled case law and Wall’s arguments appear to be convincing. The level of trust between Member States when applying common rules on jurisdiction in the Succession Regulation is no less than it is when applying the Brussels Regulation. A further similarity of the Gothaer constellation is that a valid choice-of-court clause constitutes an exclusive ground of jurisdiction which sets aside almost all other grounds for jurisdiction of Brussels Ia/Lugano Convention, a constellation not unlike the Succession Regulation, where Article 4 usually constitutes the sole general ground for jurisdiction. Moreover, this is a pragmatic solution: mention has already been made of how regrettable it was that the European legislator, despite the progress in European procedural law and the ripening of the idea of a common judicial area of mutual trust, still has not implemented more efficient and flexible tools such as a direct referral to the competent court or other ways of facilitating direct contact between judges.214 In light of this, accepting such a binding effect for procedural judgments falling under the scope of the Succession Regulation allows for a mechanism to avoid such conflicts within the Regulation’s existing provisions.

G.  Concluding Remarks The Succession Regulation is a complicated instrument. As far as jurisdiction is concerned, the difficulties associated with it span the complete range of its provisions: from how the basic notion of habitual residence should be interpreted and/or applied, certificates of succession and jurisdictional conflicts. Case law has slowly begun to

211 C-456/11 Gothaer Allgemeine Versicherung and Others (n 207) paras 39 ff (see para 39 in fine: ‘The requirement of the uniform application of European Union law means that the specific scope of that restriction must be defined at European Union level rather than vary according to different national rules on res judicata’). 212 Wall (n 144) 277 ff. 213 Roth, ‘Europäischer Rechtskraftbegriff ’ 138. 214 cf Hess (n 147) 142.

200  Arantxa Gandía Sellens, Amandine Faucon Alonso and Philippos Siaplaouras emerge, meaning that practice is starting to face the issues which have been pointed out in literature. In some cases, such as habitual residence, case law follows the path expected, while in others, such as the question of international jurisdiction regarding domestic certificates of succession, the divide in theory is reflected in case law as well. However, while these first inputs from practice are important, there is still not too much national, let alone European, case law to allow any safe conclusions for most of the issues.

V. Conclusion As described at the beginning of the chapter, the instruments examined and, in particular, the rules of jurisdiction included in them, are quite diverse. This diversity is not only evident from the comparison to the underlying principles of Brussels Ia – as shown in the introduction – but also derives from the comparison among the instruments here analysed. Indeed, the particular issues examined above show that the solutions proposed are linked to the precise nature and principles connected to each instrument. Firstly, two different categories of principles governing the Brussels IIa Regulation need to be distinguished: principles related to jurisdiction regarding matrimonial matters on the one hand and principles related to jurisdiction regarding parental responsibility on the other. Concerning the particular principles related to matrimonial matters, Recital 33 of Brussels IIa establishes that the Regulation observes the principles of the Charter of Fundamental Rights of the European Union.215 The relevant provisions of this text in the field of matrimonial matters are Article 7 (respect for private and family life), Article 9 (right to marry and right to found a family), Article 23 (equality between men and women), Article 33(1) (the family shall enjoy legal, economic and social protection) and Article 45 (freedom of movement and of residence). Regarding the specific principles for parental responsibility, Brussels IIa Regulation highlights the principle of equality for all children (Recital 5), the protection of the best interests of the child (Recital 12), the principle of proximity to the child, meaning that jurisdiction should lie in the first place with the child’s habitual residence (Recital 12), unless another court is better placed to hear the case (Recital 13). The importance of a hearing for the child is also stated (Recital 19). Finally, Recital 33 emphasises respect for the rights of the child as set out in Article 24 of the Charter of Fundamental Rights of the European Union. Secondly, the main objective of the Maintenance Regulation is to eliminate obstacles to the recovery of maintenance claims and thereby guarantee the free movement of related decisions within the EU.216 Here, protection of the weaker party is the most important guideline for establishing the connecting factors allocating jurisdiction in maintenance claims.



215 [2000]

OJ C364/1. 22, 25, 26, 31 and 45.

216 Recitals

Jurisdiction  201 Thirdly, the Succession Regulation endorses the principles of unity and universality, on the one hand, and the principle of autonomy, on the other. As a consequence of the unity and universality principles the distinction between movable and real estate succession no longer exists in cross-border settings when determining the competent court. Besides, it is ensured that any given succession will be treated coherently by one single court applying one single law. In addition, the EU lawmaker has strengthened the links between the two sets of rules by resorting as much as possible to the same connecting point, which is primarily the last habitual residence of the deceased; by doing so it provides for another form of unity, that of the forum and the ius, allowing the competent court to apply its own law most of the time. Conversely, where the conflict-of-laws rule’s connection and the jurisdictional ground diverge, the forum–ius parallelism is dropped unless reunion is made possible again, which requires certain conditions. The most relevant case of split is created by the deceased’s exercise of party autonomy – the choice of the applicable law. The principle of autonomy means that citizens are allowed to organise their succession by deciding whether the law applicable to their succession should be that of their last habitual residence or that of their nationality. Should the latter be chosen, a change of residence between the time of the choice and the time of death will not call into question the dispositions of property upon death. However, as a result of the choice the relation forum/ius is no longer automatic. An exception, which illustrates once more the lawmaker’s concern in this regard, allows for reunification where the law chosen by the deceased is the law of a Member State, provided the parties concerned agree that a court or the courts of that Member State are to have exclusive jurisdiction to rule on any succession matter. The exercise of the rights of heirs and legatees, of other persons close to the deceased and of creditors of the succession is facilitated in this way.217

Consequently, for the Regulations being considered, particular substantive concerns prevail over procedural ones, even if jurisdiction is of a procedural nature. The impact of the specificities of the substance shall, accordingly, be taken into consideration when providing for solutions in questions of jurisdiction linked to family and succession matters. Nevertheless, effective procedural rules do improve the implementation of the underlying interests and values of a jurisdictional regime. In this respect, communication among judges has become an important tool to overcome practical hurdles and fragmentation. Therefore, the EU lawmaker should address judicial communication in a transversal way to be added to all procedural instruments in family and succession matters.

217 See M Requejo Isidro, ‘Jurisdiction in the Succession Regulation’ in I Viarengo and FC Villata (eds), Planning the Future of Cross Border Families: A Path Through Coordination (Final Study, EUFams’ Project, 2017) 97–98 at www.eufams.unimi.it/wp-content/uploads/2017/12/EUFams-Final-Study-v1.0.pdf.

202

15 Parallel Proceedings – Lis Pendens and Concurrent Procedures MIRELA ŽUPAN AND MARTINA DRVENTIĆ

I. Introduction The cornerstone of EU civil justice is the free circulation of judgments. To achieve that overall aim, the EU has systematically unified private international law rules. Member States afforded the EU with internal and external competence to enact a system that assures smooth recognition and enforcement.1 Leaning on the principle of mutual trust, they aim to accomplish the dream of the ‘fifth market freedom’ – free circulation of judgments.2 However, such a fairy tale may turn into an action movie or a soap opera if rules are applied in an abusive way. One of the most prominent examples is the misuse of alternative grounds of jurisdiction available to applicants. Despite the unification in international jurisdiction, the potential of conflicting decisions is not eliminated, particularly if the grounds are alternative instead of being in a strict hierarchical order. Thus, the potential risk of contradictory decisions is high. The system of preventing parallelism of procedures and judgments through regulations is multi-layered. The burden traditionally falls on lis pendens and related actions, which prevent contradictory judgments from arising. However, lis pendens and concurrent proceedings’ rules may not be isolated from other provisions of the regulation. The root of the European lis pendens rules is the autonomous rule on determining the moment when the court is deemed to be seised. The provision on seising a court, addressed in combination with the lis pendens rule, occupies most of the academic attention.3 However, rules that enable the merging of different procedures, such as the transfer of jurisdiction rule and choice of court, serve the purpose of avoiding parallelism as well. Additional instances of control exist with the rules on recognition, which prevent 1 GV Calster, European Private International Law (Oxford, Hart Publishing, 2016) 12–20. 2 V Reding, ‘Making the Single Market work for Europe’s citizens and businesses: reforming international litigation’ SPEECH/10/92, Madrid, 15 March 2010, europa.eu/rapid/press-release_SPEECH-10-92_en.doc. 3 See RA Schutze, ‘Lis pendens and Related Actions’ and G Walter, ‘Lis Alibi Pendens and Forum Non Conveniens’ (2002) 4 EJLR 57–87; C McLachlan, ‘Lis Pendens in International Litigation’, 5 The Pocket Books of The Hague Academy of International Law (Leiden, Brill/Nijhoff, 2009); FM Buonaiuti, ‘Lis alibi pendens and related actions in civil and commercial matters within the European judicial area’ (2009) 11 YBPrIL 511.

204  Mirela Župan and Martina Drventić recognition of contradictory rulings. Hence, there is a direct link between the lis pendens rule and the rule which provides exceptions from recognition of a previously rendered decision in another state. However, parallelism of procedure requires a much wider perspective in peculiar cross-border family disputes scenarios. Parallelism of procedures also requires establishing a direct relationship with the provisions on the principle of perpetuatio fori. This aspect is particularly symptomatic in cases involving the 1996 Hague Convention on the Protection of Children and Brussels IIa. The Brussels IIter Proposal now adheres the forum non conveniens approach. Certain parallelism of proceedings also occurs if the proceedings on the merits and actions of the provisional measures are launched simultaneously. Even more, we may imagine a situation with several parallel procedures regarding an ongoing child abduction.4 Such parallelism may relate to a rather typical situation of parallel procedure on the substance of parental responsibility and the abduction action, both in the state of refuge and in the state of abduction.5 Additionally, adequate measures may be invoked under Article  11(4) of Brussels IIa.6 Moreover, another scenario of parallelism may be imagined in the context of the application of the Brussels IIa Regulation Article 11(6–8).7 Parties are keen to initiate simultaneous procedures before courts of several different Member States, seeking legal protection in a forum which they perceive to be the most beneficial for their own claim.8 Alternative jurisdiction is an open framework that enables a launch of a claim ‘to the most promising judicial marketplace’.9 In line with this, the rush to court is exacerbated by the lis pendens provision. The general private international law rule is that the second seised court stays its proceedings. The rule is reflected in national private international law legislation with a variety of forms.10 In piecemeal EU legislation, the formula of preventing parallel proceedings is used in a variety of combinations, though the Brussels I Regulation11 4 As evidenced by EUFam’s database case Nejvyšší soud, 26 February 2014, 30 Cdo 2554/2013, CZT20142602, facing lis pendens in relation to several matters such as custody, child abduction, provisional measures; related to provisional measures see Trib Torino, 16 January 2015, ITF20150116. 5 See Trib Milano, 31 March 2014, ITF20140331; Cass, 5 March 2014 No 12-24780, FRT20140305; Efeteio Athinon, 18 January 2012 No 180/2012, ELS20120118; Monomeles Protodikeio Athinon, 31 May 2016, No 2389/2016, ELF20160531. 6 Cour d’appel de Reims, 2 October 2008 No 08/02336, FRS20081002; OLG Brandenburg, 22 September 2006, 15 UF 89/06, DES20060922. 7 Cass, 12 May 2015 No 9632, ITT20150512. 8 Though parties are often calculating, sometimes they are keen to initiate double proceedings due to limitations of national law. The latter was evidenced in an English and Slovenian case where the Slovenian court first initiated proceedings that lacked jurisdiction over the property outside Slovenia. AA v BB (201) EWHC 4210 (Fam) in M Danov and P Beaumont, ‘Measuring the Effectiveness of the EU Civil Justice Framework’ (2016) 17 YBPrIL 151, 162–63. 9 S Vogenauer, ‘Regulatory Competition Regulatory Competition Through Choice of Contract Law and Choice of Forum in Europe: Theory and Evidence?’ in H Eidenmüller (ed), Regulatory Competition in Contract Law and Dispute Resolution (Oxford/Munich, Hart and CH Beck, 2013). 10 L Silberman, ‘Chapter L.11: Lis alibi pendens’ in J Basedow et al (eds), Encyclopedia of Private International Law (Cheltenham, Edward Elgar Publishing, 2017) 1162–64. 11 P Rogerson, M Lehmann, F Garcimartin ‘Lis Pendens and Related Actions’ in A Dickinson and E Lein (eds) The Brussels I Regulation Recast (Oxford, 2015) 321–55; Ch Heinze, B Steinrötterin ‘The Revised Lis Pendens Rules in the Brussels Ibis Regulation’ in V Lazić, S Stuij (eds), Brussels Ibis Regulation Changes and Challenges of the Renewed Procedural Scheme (Springer, 2017) 1–27.

Parallel Proceedings – Lis Pendens and Concurrent Procedures  205 provides the core. The lis pendens rule serves many functions in cross-border civil ­litigation of the EU Member States. Functions include: protection of the juridical system, protection of the parties, safeguarding the procedural economy, preserving the mutual trust, as well as protection of the right to a fair trial12 of Article  6 of the ECHR.13 Hence the system should, at an early stage, prevent any parallel procedure. Though lis pendens rules are introduced to assure sensitivity in handling complex crossborder cases, strict application of the first-in-time rule may lead to the opposite effect. However, open issues and gaps in application of the lis pendens rules of Brussels IIa, the Maintenance Regulation, and the Successions Regulation create a narrow and problematic area. Parallel procedures are challenging in several other aspects as well. Such situations that do not meet true lis pendens criteria, but have pending, concurrent claims in different jurisdictions, are concerns of the legislator and practitioner. The aim of this chapter is twofold: to provide a framework for different aspects of parallel procedures de lege lata in the practice of the national courts; and to offer solutions for de lege ferenda legislation. The focus is given to the pendency rule. Such elaboration triggers the rules currently contained in EU legislation on international family and succession law. The most prominent problems detected by the collected case law are from several jurisdictions and possible improvements are suggested. Proposals for future amendments of EU legislation are offered, in relation to the ongoing legislative process of the Brussels IIter Recast Proposal.

II.  Lis Pendens and Concurrent Procedures – Statement of Fact A.  A Theoretical Approach Juridical systems use lis pendens to prevent conflicting judgments.14 Parallel procedures must be stopped at the early stages of the adjudication process, to protect both the juridical system and the parties. Juridical systems are burdened by additional costs and time if two procedures are conducted.15 In the end, rules on recognition prevent simultaneous recognition of judgment. Rules must be effective and avoid contradictory judgments in cases with parallel claims. Parallel judgments disturb the doctrine of mutual trust.16 Parties in such procedures may face additional costs. If a procedure

12 J Fawcett, MN Shuilleabhain, S Shah, Human Rights and Private International Law (Oxford, 2016) 126–27, 410. 13 Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ETS 5. 14 R Fentiman, ‘Lis pendens – related actions’ in U Magnus and P Mankowski (eds) European Commentaries on Private International Law Brussels I Regulation, 2nd edn (Sellier European Law Publishers, 2012) 560. 15 M Danov, ‘Data Analysis: Issues to be Considered’ in P Beaumont et al (eds), Cross-Border Litigation in Europe (Oxford, Hart Publishing, 2017) 493. 16 M Weller ‘Mutual trust: in search of the future of European Union private international law’ 11 JPIL 64, 64–102.

206  Mirela Župan and Martina Drventić conducted in one Member State ends with a judgment which is not recognised abroad, because another judgment has already been rendered in a parallel procedure, the right to effective access to justice, as guaranteed under Article  6(1) ECHR as well as Article 8 CFR,17 is impinged.18 Rules on parallel procedures resemble sector-specific unification in EU civil justice. In piecemeal EU legislation, the methods to prevent parallel proceedings are used in a variety of combinations.19 The prototype used to draft relevant provisions in regulations enacted in the post-Amsterdam area may be found in the Brussels I Regulation. The CJEU has interpreted the concept in a great number of CJEU decisions and has given it a European-wide meaning.20 Therefore, interpretation provided by the CJEU on the pendency and priority issue in the event of parallel procedures may be applied by analogy to any regulation in the civil justice area, as confirmed by the CJEU.21 Though this common-core provision served to create a pendency rule in the Brussels II and IIa Regulations as well,22 Brussels I instantly provided rules on true lis pendens and related actions. The pattern was not used with Brussels IIa, but was followed later by the Maintenance and the Succession Regulations. Moreover, the relevant Articles 27–30 of the Brussels I Regulation have been significantly altered with the Recast of that Regulation, to address the challenges that appeared in practice.

i.  Lis Pendens and Dependent Actions of the Brussels IIa Regulation (Article 19) 1.

2.

Where proceedings relating to divorce, legal separation or marriage annulment between the same parties are brought before courts of different Member States, the court second seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established. Where proceedings relating to parental responsibility relating to the same child and involving the same cause of action are brought before courts of different Member States,

17 Charter of Fundamental Rights of the European Union [2012] OJ C326. 18 Fawcett et al (n 12) 410. 19 M Linton, ‘Abolition of Exequatur, All in the Name of Mutual Trust!’ in B Hess, M Bergström, E Storskrubb (eds) EU Civil Justice (Hart, Oxford, 2016) 282. 20 CJEU refers to the ‘general concept‘ of lis pendens in a dispute concerning parallel proceedings under the Insolvency Regulation, C-341/04 Eurofood IFSC [2006] ECR I-3813, ECLI:EU:C:2006:281. 21 ‘As a preliminary point, it must be recalled that, in so far as Regulation No 44/2001 now replaces the Brussels Convention in relations between the Member States, with the exception of the Kingdom of Denmark, an interpretation given by the Court concerning that convention also applies to the regulation, where its provisions and those of the Brussels Convention may be treated as equivalent (see: inter alia, Case C-292/08 German Graphics Graphische Maschinen [2009] ECR I-8421, ECLI:EU:C:2009:544 para 27 and case-law cited). Furthermore, it is clear from Recital 19 in the Preamble to Brussels I Regulation that continuity in interpretation between the Brussels Convention and that regulation should be ensured.’ Case C-406/09 Realchemie Nederland BV v Bayer CropScience AG [2011] ECR I-09773, ECLI:EU:C:2011:668 para 38; ‘Finally, as far as concerns the conditions laid down in Art 27(1) of the Lugano II Convention, relating to the identity of the parties and the cause of action brought before the courts of different States, it must be observed that, as is clear from the case-law of the Court relating to the interpretation of Art 27 of Regulation No 44/2001, which is transposable to the interpretation of Art 27 of the Lugano II Convention.’ Case C-467/16 Brigitte Schlömp v Landratsamt Schwäbisch Hall [2017] ECLI:EU:C:2017:993 para 51. 22 As referred to by B Hess, Heidelberg Report – Report on the Application of Regulation Brussels I in the Member States Study, JLS/C4/2005/03, 29.

Parallel Proceedings – Lis Pendens and Concurrent Procedures  207

3.

the court second seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established. Where the jurisdiction of the court first seised is established, the court second seised shall decline jurisdiction in favour of that court.

In that case, the party who brought the relevant action before the court second seised may bring that action before the court first seised.

ii.  Lis pendens Maintenance Regulation (Article 12), the Succession Regulation (Article 17) 1.

2.

Where proceedings involving the same cause of action and between the same parties are brought in the courts of different Member States, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established. Where the jurisdiction of the court first seised is established, any court other than the court first seised shall decline jurisdiction in favour of that court.

iii.  Related Actions, the Maintenance Regulation (Article 13), the Succession Regulation (Article 18) 1. 2.

3.

Where related actions are pending in the courts of different Member States, any court other than the court first seised may stay its proceedings. Where those actions are pending at first instance, any court other than the court first seised may also, on the application of one of the parties, decline jurisdiction if the court first seised has jurisdiction over the actions in question and its law permits the consolidation thereof. For the purposes of this Article, actions are deemed to be related where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable decisions resulting from separate proceedings.

B.  The Basic Rule Once a court is seised, pursuant to the regulation, and declares itself competent, courts of other Member States must dismiss any subsequent application. Any court seised must, on its own motion, question its jurisdiction. Once the jurisdiction of the court first seised is established, the court second seised shall decline jurisdiction in favour of that court.23 Parallel proceedings may be twofold: (a) proceedings relating to the same subject matter and cause of action; or (b) proceedings which do not relate to the same cause of action, but which are ‘dependent actions’ brought before courts of different Member States. The CJEU has recently elaborated the difference between (a) and (b).24 If each of



23 Magnus 24 Case

and Mankowski (n 14) 201–209. C-173/16 M.H. v M.H. [2016] ECLI:EU:C:2016:542 para 20.

208  Mirela Župan and Martina Drventić the spouses raises proceedings for divorce in different Member States rule (a) applies. If one spouse raises proceedings for divorce and the other raises proceedings for annulment, in different Member States, then rule (b) applies. Lis pendens may arise if the two proceedings fall under three conditions: 1) have the same cause of action;25 2) are between the same parties and determinations of parental responsibility relate to the same child; and 3) one Member State court is first seised. As established by doctrine and the CJEU case law, the lis pendens rule is ius cogens, and no party autonomy may be employed here. The mechanism to resolve situations of lis pendens is objective and automatic.26 It is based on the chronological order in which the courts concerned were seised.27 Lis pendens exists from the moment when two courts of different Member States are definitively seised of legal proceedings, ie, before the defendants state their position.28 The provision on seising a court is employed to establish the chronological order of the claims. Related to lis pendens, the time when a court is considered to be seised for the purposes of applying the regulation is defined uniformly by every respective regulation,29 and at the same time independently by national rules. These provisions distinguish two separate starting points. First, a court is seised at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the plaintiff has not subsequently failed to take the required step to serve the defendant. Second, if a document has to be served before being lodged with the court, the court is seised when the document is received by the authority responsible for service, provided that the plaintiff has not subsequently failed to take the steps required to lodge the document with the court. Two methods of bringing proceedings before national courts or tribunals are envisaged, either by the lodging of the document initiating proceedings at the court or tribunal, or by service of that document. Though the rule derives from its 1968 prototype, it still raises controversy. Recently the CJEU ruled in the context of the Brussels IIa Regulation that the ‘time when the document instituting the proceedings or an equivalent document is lodged with the court’, is the time when that document is lodged with the court concerned, even if under national law lodging that document does not immediately initiate proceedings.30 The court second seised must stay its proceedings until the jurisdiction of the court first seised is established. The CJEU clarified that the lis pendens rules do

25 As clarified by the CJEU in Case 144/86 Gubisch Maschinenfabrik KG v Giulio Palumbo [1987] ERC 04861, ECLI:EU:C:1987:528 para 14, Case C-406/92 The owners of the cargo lately laden on board the ship ‘Tatry’ v the owners of the ship ‘Maciej Rataj’ [1994] ECR I-05439, ECLI:EU:C:1994:400 para 39 both proceedings must be founded on the same grounds and concern the same matter though it may not always be an easy task, see L Walker, Maintenance and Child Support in Private International Law (Oxford, Hart Publishing, 2015) 56–57. 26 Case C-111/01 Gantner Electronic GmbH v Basch Exploitatie Maatschappij BV [2003] ECR I-04207, ECLI:EU:C:2003:257 para 30. 27 Case C-438/12 Irmengard Weber v Mechthilde Weber [2014] ECLI:EU:C:2014:212 para 52; Case C-489/14 A v B [2015] ECLI:EU:C:2015:654, para 30. 28 Case C-111/01 Gantner Electronic (n 26) para 27. 29 Art 16 Brussels IIa Regulation; Art 9 of the Maintenance Regulation; Art 14 Successions Regulation. 30 Case C-173/16 M.H. v M.H. (n 24) para 29.

Parallel Proceedings – Lis Pendens and Concurrent Procedures  209 not touch upon national rules regarding the modalities with which the court first seised declares its jurisdiction.31 Deductive reasoning lead to a common, core approach to the parallel proceedings employed by the international family and successions regulations: a. b. c. d. e. f.

provisions belong to the ‘common provisions’ section; only one scenario is prescribed: lis pendens in different Member States with legal lacuna regarding third states’ parallel procedures; differentiation is introduced among the lis pendens and related actions; autonomous determination of the moment when the court is seised is unified; perpetuatio fori principle counts for all; and a strict first-in-time approach is employed on the bases of chronological order in which the courts are seised.

The CJEU issued several rulings in relation to seising of a court, lis pendens, and related actions in context of family and successions matters.32 This basic rule has been widely elaborated by many valuable, academic contributions.33 The first set of questions relate to: identity of the cause of action; identity of the parties; the temporal moment when each of the courts has been seised; and information on the relevant case or national procedural law at the moment the court is seised. The second set of questions relate to: the meaning of the phrase ‘on its own motion’; the interplay with national procedural law; time needed for the court first seised to establish its jurisdiction; and information on the moment the procedure is deemed to be pending in the court first seised. This contribution would thus focus on the issues of lis pendens and related actions raised by the case law collected in the EUFam’s database. Because of these considerations and the fact that the prototype Brussels I has been significantly altered with the 2012 Recast, it remains uncertain whether the regime employed currently by the EU international family and succession regulations is appropriate. The EUFam’s project deals with the three relevant regulations. One of them, the Successions Regulation was contemporaneous with the Brussels I Recast. However, rules on lis pendens do not resemble the evolution undertaken by the EU legislator. Currently the procedure to reform the Brussels IIa is ongoing. However, besides minor cosmetic changes, the Brussels IIter Proposal34 contains no significant change to Article  19 in general. Some improvement is offered for the 1996 Hague Convention on the Protection of Children Contracting States, which will be discussed latter.

31 In Case C-1/13 Cartier parfums – lunettes SAS and Axa Corporate Solutions assurances SA v Ziegler France SA and Others [2014] ECLI:EU:C:2014:109, ‘the jurisdiction of the court first seised must be regarded as being established, within the meaning of that provision, if that court has not declined jurisdiction of its own motion and none of the parties has contested its jurisdiction prior to or up to the time at which a position is adopted which is regarded in national procedural law as being the first defence on the substance submitted before that court.’ 32 Case C-296/10 Bianca Purrucker v Guillermo Vallés Pérez [2010] ECR I-11163, ECLI:EU:C:2010:665; Case C-489/14 A v B (n 27); Case C-173/16 M.H. v M.H. (n 24); Case C-467/16 Schlömp (n 21). 33 C McLachlan, ‘Lis Pendens in International Litigation’ (2009) 336 Recueil des Cours de l’Académie de Droit International 199; R Fentiman, ‘Lis pendens – related actions’ in Magnus and Mankowski (n 19) 560; P Beaumont and PE McEleavy (eds), Anton’s Private International Law (Edinburgh, W. Green, 2011); Walker (n 25) 56–65. 34 Brussels IIter Proposal.

210  Mirela Župan and Martina Drventić

III.  Parallel Procedure in National Practice Since the Amsterdam Treaty, the efficiency of national procedural systems is a general EU policy consideration. Due to this priority, DG Justice ensures constant supervision of national systems,35 and supports projects like EUFam’s. Elaboration of the national courts’ practice presented here is based on the findings of the EUFam’s project, and other available sources as well. The core information derives from the EUFam’s deliverables: reports and the case law database. However, the other academic and practice findings rendered so far, as well as other available published national case law, served to test and confirm the ineffectiveness of the system to combat parallel procedures at the EU level.

A.  EUFam’s Reports Uniform rules enacted by relevant regulations take shape in national court practice. Problematic applications of the regulations are highlighted by EUFam’s reports, where several issues in relation to parallel procedures are instantly brought to attention. The First Assessment Report on the Case-law Collected by the Research Consortium36 sampled 371 decisions and showed that situations of lis pendens have been registered in 39 cases. The report showed that the Member States’ case law correctly applied the relevant rules on lis pendens. Still, sometimes the correct outcome was reached through the application of national rules instead of the applicable EU Regulation. The collected cases raised issues of interrelation of the lis pendens rule with the rule on exclusive jurisdiction, and with the rule determining the moment a court is seised. Several cases pointed to the distinction between the assessment of lis pendens and the assessment of jurisdiction. The report also pointed to lis pendens in the context of third states’ proceedings. Collected case law revealed that there were two approaches for situations where the proceeding is pending before a non-Member State’s court. The first approach was to apply the rules of lis pendens established by the EU regulation in cases involving nonMember States; and the second was to apply national rules on lis pendens. The Report on the Italian Good Practices37 highlights that breaches of Article 19 of the Brussels IIa Regulation are frequent, but are not grounds for non-recognition of foreign judgments. Another particularly interesting aspect relates to national procedure under the Italian institute on extrajudicial separation or divorce. In that respect, the report seeks to clarify whether starting an extrajudicial separation or divorce can be considered to be an application to a court (within the meaning Article  19 of the Brussels IIa Regulation). The Report on the German Good Practices38 tackles the 35 B Hess ‘The State of the Civil Justice Union’ in B Hess, M Bergström, E Storskrubb (eds) EU Civil Justice (Oxford, Hart, 2016), 10. 36 I Viarengo and F C Villata, First Assessment Report on the case-law collected by the Research Consortium (EUFam’s Project, 2016) at www.eufams.unimi.it/2017/01/09/firstassessmentreport. 37 MC Baruffi, C Fratea and C Peraro, Report on the ItalianGood Practices (EUFam’s Project, 2016) at www.eufams.unimi.it/2017/01/10/italian-report-on-good-practices. 38 MJ Escher and J Wittmann, Report on the German Good Practices (EUFam’s Project, 2016) at www.eufams.unimi.it/2017/01/10/german-report-on-good-practices.

Parallel Proceedings – Lis Pendens and Concurrent Procedures  211 behaviour of the parties which commonly causes delays in proceedings. The Report on the Croatian Good Practices39 emphasises the problem of proving that an ongoing process is taking place abroad, as well as issues of related evidence.

B.  EUFam’s Database on Lis Pendens The database created under the project contained 756 decisions on 1 December 2017. Out of the total, 54 were lis pendens orders. Most of them (50) were related to the application of the Brussels IIa Regulation; four were related to the Maintenance Obligation Regulation and none identified the Succession Regulation. Figure 1  Database on lis pendens

C.  Practice of the National Court of the Member States National cases in relation to lis pendens may be classified into several categories. Broad classes are: a) smooth application of the rules; b) false application of the rules; and c) problematic application of the rules.

i.  Smooth application of the rules occurred in cases where rules preventing parallel procedures functioned well. Several categories were identified. Among the category of

39 M Župan and M Drventić, Report on the Croatian Good Practices (EUFam’s Project, 2016) at www.eufams. unimi.it/2017/01/10/croatian-report-on-good-practices.

212  Mirela Župan and Martina Drventić complex cases with interrelated matters on several attributed claims lis pendens was triggered in different scenarios. The objective scope of lis pendens was questioned here. Some of the issues were outside the scope of the EU regulations, ie a matrimonial property action did not create a parallel procedure with a divorce action brought before a different Member State court.40 In other cases, issues were within the EU scope in complex actions involving divorce and other claims including parental responsibility and maintenance. National courts properly concluded that the Brussels IIa Regulation applies only to a specific part of the claim and leaves the rest of the claim unaffected.41 The conclusion of a court that the isolated maintenance claim of a spouse against the other spouse does not develop lis pendens effect with relation to a divorce action brought before a different Member State court is equally well founded.42 A national court dealt with the question of whether the second-seised court should dismiss or stay the procedure. The court concluded that the appropriate method of declining jurisdiction is to dismiss the petition.43 In some national cases, the parties objected to lis pendens in later stages of parallel procedures. The court which was obviously first seised could not even apply the lis pendens because the second-seised court already rendered a decision. Hence, instead of lis pendens the court applied res iudicata.44 National courts determined proper procedural matters and distinguished the assessment of the lis pendens situation versus the assessment of jurisdiction. In national practice, courts positively determined their jurisdiction pursuant to the parties’ common nationality. Afterwards, they determined the dates of commencement of both proceedings for lis pendens.45

ii.  False Application of the rules has been detected in national case law as well. False

application is a clear departure from the provisions of the relevant regulation. It also disregards the previously set CJEU standards of interpretation. The latter is particularly relevant due to the CJEU clearly stating that Brussels I cases apply by analogy.46 Case law reveals a false, procedural distinction between the assessment of the lis pendens situation and the assessment of jurisdiction. Hence, the court of first instance could not decline its jurisdiction without examining the facts regarding lis pendens.47 In another case, the court correctly established its own jurisdiction and then established lis

40 OGH (AT) 28.04.2011–1Ob44/11v Unalex Case Law. 41 Unalex Case law Case HU-46 Szegedi Városi Bíróság (HU) 4 May 2006, 14.P.20.189/2005/36. 42 Cass, 5 December 2012 No 11-25822. 43 E v E [2015] EWHC 3742 (Fam). 44 Viarengo and Villata (n 36) 60. 45 Nejvyšší soud, 16 July 2008, 4 Nd 55/2008, CZT20080716. 46 See n 21. 47 In a dispute decided by a Slovak appellate court, a mother filed an action for divorce and determination of parental responsibility. The court of first instance declined its jurisdiction since the child habitually resided in Italy and a proceeding regarding separation had been filed before an Italian court. The mother appealed against this judgment affirming: (i) that the lis pendens mechanism was inapplicable since only separation proceedings were dealt with before the Italian court; and (ii) that regarding parental responsibility, the court of first instance must evaluate the application of Art 12(1) of the Brussels IIa Regulation. The court of second instance correctly overturned the first instance decision, stating that the court of first instance could

Parallel Proceedings – Lis Pendens and Concurrent Procedures  213 pendens, but then falsely engaged with establishing the facts that provide ground for the jurisdiction of the court first seised.48 The second-seised court undertook a review of the jurisdiction of the court first seised, which is clearly forbidden by CJEU. The court second seised may not undertake any investigation whether the jurisdiction of the court first seised is properly grounded.49 In some situations, the proceedings in the court first seised last too long. However, the court second seised had to acknowledge that regardless of the elapsed time (even if the court first seised was inactive), the lis pendens rule remains untouched and the court second seised must refrain from any action.50 The CJEU previously confirmed this approach.51 National case law demonstrates a clash with national procedure as well. One of the prominent examples of diversity of national procedural rules is the provision on holding jurisdiction. Hence, many national procedural systems do not have a clear moment to declare that the court has jurisdiction.52 Thus, the court second seised is uncertain whether the court first seised accepts jurisdiction over the case. The provision on lis pendens determines that the court second seised must stay its proceedings until such a time that the jurisdiction of the court first seised is established. In several national cases, abduction proceedings were pending in one Member State and parental responsibility proceedings in another Member State. Such a situation does not amount to a parallel procedure, as confirmed by CJEU.53 A similar scenario is the pendency of a procedure upon provisional measure in one Member State and a parental responsibility procedure in another Member State. Like the previous example with abduction proceedings, this situation does not amount to a parallel procedure, as confirmed by the CJEU.54 A rare but possible scenario is a negative declaratory judgment in maintenance matters. Here the application of Brussels I case law becomes relevant again.55 The CJEU not decline its jurisdiction without previous examination of the facts regarding lis pendens, as well as of the possibility to apply other provisions of the Brussels IIa Regulation applicable in parental responsibility matter (other than Art 8). KS Trnava, 23 September 2014, 25CoP/40/2014, SKS20140923. 48 The Croatian court second seised took evidence and made it clear that the procedure was properly initiated in Germany first. However, it then examined various proof on life circumstances of the parties and determined that parties had habitual residence in Germany, which was decisive to determine jurisdiction in accordance to the Brussels IIa Regulation by the German court first seised. Općinski sud u Varaždinu, 2 April 2014, P-3/14-19, CRF20140402. 49 Case C-351/89 Overseas Union Insurance Ltd and Deutsche Ruck Uk Reinsurance Ltd and Pine Top Insurance Company Ltd v New Hampshire Insurance Company [1991] ECR I-03317, ECLI:EU:C:1991:279 para 26. 50 Općinski sud u Rijeci, 26 September 2014, P-1638/2014, CRF20140926; OLG Hamm, 23 December 2005, 11 WF 383/05 Unalex. 51 Case C-116/02 Erich Gasser GmbH v MISAT Srl [2003] ECR I-14693, ECLI:EU:C:2003:657 para 73. 52 Trib Cagliari, 9 March 2011, ITF20110309. 53 ‘Such an action, whose object is to return a child to the Member State of origin because they were wrongfully removed or retained in another Member State, does not concern the substance of parental responsibility and therefore has neither the same object nor the same cause of action as an action seeking a ruling on parental responsibility.’ Emphasis added. Case C-376/14 PPU C v M [2014] EU:C:2014:2268 para 40; also Case C-296/10 Purrucker (n 32), para 68. For EUFam’s case law see n 7. 54 C-296/10 Purrucker (n 32). For EUFam’s case law see n 5. 55 C-406/92 Tatry v Maciej Rataj (n 25) para 45; Case C-133/11 Folien Fischer AG and Fofitec AG v Ritrama SpA [2012] ECLI:EU:C:2012:664 para 49; Case C-452/12 Nipponkoa Insurance Co. (Europe) Ltd v Inter-Zuid Transport BV [2013] ECLI:EU:C:2013:858 para 42.

214  Mirela Župan and Martina Drventić again repeated that ‘an action seeking to have the defendant held liable for causing loss has the same cause of action as an action brought by that defendant seeking a declaration that he is not liable for that loss’.56 In a recent maintenance case, the argument of the Advocate General Szpunar57 may be particularly valuable for the courts of recently acceded Member States where the prior CJEU case law has not been translated into their national languages.58

iii.  The Problematic Application of the pendency rules results in situations where

legal gaps exist in the regulatory scheme, and no CJEU ruling provides acceptable guidance. Such a scenario results in diverging interpretations in different Member States. The main points of departure in this third set of cases are: how to establish if the other court has been seised; and how to establish or interpret the procedural law of the other Member State. A glance at new CJEU case law on lis pendens reveals the problems are symptomatic for the entire civil justice area.59 In these cases, sometimes the evidence was lacking, but there was an objection to lis pendens.60 The subsequent question is whether the court should collect evidence on lis pendens ex officio or not. If we take the doctrinal point that the courts should collect evidence ex officio, we end up with a new lacuna. For instance, succession cases are handled by a notary instead of a court, since there is no cooperation mechanism at their disposal. Another problematic scenario for the entire civil justice area is establishing the moment the court is seised in event of a preliminary or similar procedure predating the substantive procedure and is required by law to initiate the procedure on the substance. In divorce cases, Member States’ national family law often prescribes obligatory mediation before a divorce. In the context of our topic, it becomes relevant if the lis pendens is activated with the launch of the ‘preliminary’ mediation procedure, or only with the divorce petition before the court (when the case starts, as defined by national procedure). Advocate General Szpunar employed a valuable functional interpretation on the matter: My proposed answer to the question of the referring court is, therefore, that in a situation such as that in the main proceedings, where a conciliation procedure is an obligatory step which has to be followed before a case can be brought before a court and where a conciliation

56 C-406/92 Tatry v Maciej Rataj (n 25) para 45. 57 ‘The cause of action comprises the facts and rule of law relied on as the basis of the action; the object of the action means the end that the action has in view. It is sufficient that the actions have the same subject matter: the claims are not required to be entirely identical. The converse situation of an action for a declaration of non-liability followed by an action for damages has also been the subject of a ruling. In that respect, the latter action has the same object as the former, since the question of the existence or nonexistence of liability is the focus of the proceedings. The different heads of claim do not mean that the two legal actions have different objects.’ Opinion of AG Szpunar in Case C-467/16 Schlömp [2017] ECLI:EU:C:2017:768 para 31. 58 See issues of translation raised in M Župan et al ‘The Application of the EUFam’s Regulations in Croatia’ in ch 30 of this book. 59 Case C-29/16 HanseYachts [2017] ECLI:EU:C:2017:343; Case C-173/16 M.H. v M.H. (n 24); Case C-523/14 Aannemingsbedrijf Aertssen NV and Aertssen Terrassements SA v VSB Machineverhuur BV and Others [2015] ECLI:EU:C:2015:722. 60 Županijski sud u Rijeci, 17 November 2014, Gž-3397/2014, CRS20141117.

Parallel Proceedings – Lis Pendens and Concurrent Procedures  215 procedure and an ensuing procedure before a court are considered as comprising two separate parts of the judicial procedure, a court has been seised under Art 27 and 30 of the Lugano II Convention at the moment the conciliation authority is seised, provided that the plaintiff has undertaken all necessary steps incumbent on him to continue the procedure before a court.61

The CJEU followed this rationale and concluded that Articles 27 and 30 of the 2007 Lugano Convention ‘must be interpreted as meaning that, in the case of lis pendens, the date on which a mandatory conciliation procedure was lodged before a conciliation authority under Swiss law is the date on which a “court” is deemed to be seised.’62 A considerable number of national cases face the problem of parallel procedures in relation to a third state. National case law proves that the area is controversial and Member States’ courts follow two different approaches. In some Member States, the ongoing third state procedure is respected.63 In other cases, due to the Owusu v Jackson64 judgment and the exclusive and mandatory nature of the EU jurisdictional rules, the procedure is ignored. These issues of third states’ parallel proceedings have been noted in doctrine,65 as well as in the EUFam’s first assessment report.66 The EUFam’s database shows that national attitudes are changing over time,67 or that even in the same member state several approaches are advocated.68 For example, the English High Court69 has advocated the approach that Owusu does not apply for the Brussels IIa.70 A similar approach has been advocated by a KG Berlin court judgment, with no consideration whatsoever of Owusu. The national court decided that since lis pendens is not regulated by the Brussels IIa Regulation, the matter is left to national law. It then decided that under German law, the time at which the foreign proceedings are deemed pending is determined by the law of the court seised of the case rather than the criteria of the Brussels IIa Regulation.71 A rather innovative approach to the matter appears with the

61 Opinion of AG Szpunar in Case C-467/16 Schlömp (n 57) para 52. 62 Case C-467/16 Schlömp (n 21) para 59. 63 National private international law rule on lis pendens applied in Županijski sud u Rijeci, 28 November 2013, GŽ-5432/2013-2, CRS20131128. 64 Case C-281/02 Andrew Owusu v NB Jackson, trading as ‘Villa Holidays Bal-Inn Villas’ and Others [2005] ECR I-1383, ECLI:EU:C:2005:120 para 37–46. 65 T Kruger, Civil Jurisdiction Rules of the EU and their Impact on Third States (Oxford, 2008) 267; G Vitellino ‘European Private International Law and Parallel Proceedings in Third States in Family Matters’ in A Malatesta, S Bariatti and F Pocar (eds), The External Dimension of EC Private International Law in Family and Succession (Padova, CEDAM, 2008) 231–36. 66 See Viarengo and Villata (n 36) 55. 67 Cour d’appel de Paris applied a bilateral agreement to settle lis pendens (Cour d’appel de Paris, 24 January 2008, No 06/07119, FRS20080124). However, Cour de Cassation in 2012 refused to apply the FR Morocco convention because they lived in France. Hence, it denied the existence of prior procedure in Morroco (Cass, 10 October 2012 No 11-12621, FRT20121010). 68 Trib Milano ignored prior Swiss proceedings in its 2014 case (Trib Milano, order, 16 April 2014, ITF20140416), while Trib Como tolerated a Dubai procedure under national law in 2017 (Trib Como, 24 January 2017, ITF20170124). Recently, the United Divisions of the Supreme Court was asked to decide if jurisdiction founded on Brussels IIa Regulation is exclusive in the sense that it is prevailing over law No 218/1995 and hence excludes international lis pendens or, on the contrary Art  7 law No 218/1995 is still applicable for parallel proceeding between Italy and a non-Member State (Cass 2 May 2016 No 11740, ITT20160502). 69 JKN v JCN [2010] EWHC 843. 70 I Bantekas, The Pitfalls of Lis Pendens in Transnational Matrimonial Jurisdiction Disputes Before English Courts (International Family Law, Jordan Publishing, 2014) 30. 71 KG Berlin 3 February 2016, 3 UF 78/15.

216  Mirela Župan and Martina Drventić Court of Appeal Mittal v Mittal ruling.72 The English court stayed its divorce proceedings in favour of proceedings commenced earlier in India. However, the Court of Appeal pleaded for the application of the policy underlining Articles 33–34 of the Brussels I recast. However, this approach is not in conformity with the current Regulations, nor with the Brussels IIter Proposal.73 The Succession Regulation contains no alternative jurisdiction rule, and lis pendens and related actions should not occur very often. Doctrinal writings in relation to possible problems on the identity of the parties74 were not reported by the EUFam’s database. However, in Croatia the successions procedure is initiated ex officio upon establishment of the fact of death of the deceased in relation to any Croatian national. In many cases the authority could not determine if proceedings were also initiated in another Member State, due to misleading information of the successors.75 This occurs in cases where the notary informs the parties (successors) that proceedings have been initiated, but parties remain passive. Obstacles in succession proceedings could be removed through enhanced judicial cooperation and lis pendens.76

IV.  Evolution of an Approach to Combat Parallelism of Procedures Article 81 TFEU provides no clear competence rule to unify procedural law. Moreover, the CJEU maintains the principle of procedural autonomy of the Member States’ systems.77 Still, they are interlinked by the EU acquis, and they affect the functioning of the acquis.78 Uniform rules, such as those applied in national case law, present benefits but also shortcomings. The EU is keen to revise each regulation over time, particularly to address the problems in its application. Provisions on lis pendens and related actions of the Brussels IIa Regulation, the Maintenance Regulation, and the Succession Regulation follow the model established with the 1968 Brussels regime. However, a relevant area has been significantly improved by the CJEU interpretations, and accordingly altered by the Brussels Ia Regulation. The Brussels IIa Recast procedure has been ongoing for several years, hence it is currently in an advanced stage. The Brussels IIter Proposal, however, does not introduce any significant change to the lis pendens rule. The provision remains untouched, though some changes result from the disconnection clause of Article  75(2)(c) of the Proposal. Despite the disconnection clause rule that the Regulation takes priority if a child is habitually resident in a Member State, the Recast

72 Mittal v Mittal [2013] EWCA Civ 1255. 73 K Trimmings, ‘Brussels IIa: Matrimonial matters’ in P Beaumont et al (n 8) 813–15. 74 AL Calvo Caravaca, A Davi and HP Mansel (eds), The EU Succession regulation: A Commentary (Cambridge University, 2016), 254–63; U Bergquist et al, EU Regulation on Succession and Will (Köln, Ottoschmidt, 2015) 109. 75 Županijski sud u Rijeci, 13 December 2017, Gž 465/2016-2. 76 See Župan (n 58). 77 Hess (n 35) 1–2. 78 ibid, 11.

Parallel Proceedings – Lis Pendens and Concurrent Procedures  217 rules allow the prior proceedings in a 1996 Hague Convention on the Protection of Children Contracting State to be considered.79 Accordingly, the Brussels IIter Proposal is slightly improving the parallel procedures arena, leaving other problematic or unclear issues untouched. Background documents used by the Commission before it launched the Recast procedure, particularly the Study on assessment,80 showed problems when applying the lis pendens rule. The attached statistical data did not indicate major problems applying pendency rules. However, the EUFam’s National Reports, Report to the good practice, and particularly the database, signals that action is needed in this area as well. Our study indicates that current rules encourage forum shopping within Europe and support unjust tactical litigation. The collection of national case law demonstrates the huge number of parallel procedures, in different scenarios. Invoking lis pendens resulted in open questions and diverging national practices. Most cases show a clash of national procedural law rules with the provisions of a regulation, which could hardly be eliminated without unifying procedural law. In respect of other identified issues, the evolution accomplished in the context of the Brussels Ia should not be overseen. Abolishing parallelism of procedures should be advocated, with certain amendments that go beyond the prototype model. Consequently, more clarity and certainty would be assured in the EU civil justice area. Thus, the aspects highlighted here should be translated into a series of new provisions. Some of the problems particularly relate to maintenance claims, hence they should be considered in the future recast of that Regulation. Several aspects deserve instant attention, such as the conduct of the applicant and perpetuatio fori.

A.  Conduct of the Applicant The current rule on lis pendens in the Brussels IIa Regulation does not sufficiently prevent a wilful delay of proceedings by one party. Thus, a special provision or recital should be added, and require the party that first filed the suit must actively pursue the court proceeding.81 A rule to prevent such bad faith seems necessary because the CJEU did not yet issue any interpretation on this issue. Indeed, in the case C-489/14 A v B it dealt with the conduct of the applicant in the first proceedings, notably his lack of diligence. Nevertheless, the Court focused on other aspects of the situation to establish that the criteria for lis pendens were no longer fulfilled. Therefore, it stated that the conduct of the applicant in the first proceedings was not relevant for determining whether the jurisdiction of the court first seised was established.

79 ‘Art 75C(c) where proceedings relating to parental responsibility are pending before an authority of a State Party to the 1996 Hague Convention in which this Regulation does not apply at the time when an authority in a Member State is seised of proceedings relating to the same child and involving the same cause of action, Art 13 of that Convention shall apply.’ 80 Study on the assessment of Regulation (EC) No 2201/2003 and the policy options for its a­ mendment. Final Report. Evaluation. Analytical annexes. Directorate-General for Justice and Consumers, 2015. See ec.europa.eu/justice/civil/files/bxl_iia_final_report_evaluation.pdf. 81 As suggested in the Report on the German Good Practices (n 38), 4 (1.3.), 13 (Conclusions).

218  Mirela Župan and Martina Drventić In divorce proceedings, a party may rush to a court to gain the advantage of a more favourable forum, but then engage with alternative dispute resolution (ADR) of a case. That party misused the lis pendens rule to freeze the jurisdiction, thus minimising the possibility for mediation or other ADR to succeed.82 Some national laws would give the parties the option to activate lis pendens at an early stage, regardless of the ongoing ADR or regardless if the litigation would in the end take place. On the contrary, other national laws preclude this possibility. Another aspect of this problem lies with the time limits for the service of the documents instituting the proceedings, in correlation with the lis pendens. Pursuant to the general rule a court is deemed to be seised for the purposes of the lis pendens rule when the document instituting the proceedings is lodged with the court, if the claimant has not subsequently failed to take the required steps he to serve the defendant. This rule applies whenever, per the applicable rules of national procedural law, the document does not have to be served before being lodged with the court. Some national procedural laws afford the claimant with a period for service, after having lodged the document with the court. Hence the claimant can lodge the document instituting a proceeding, triggering the lis pendens mechanism and then wait for a long time. Rush to court and passivism contribute to ineffective service of justice, burdens the courts, and thwarts other possible alternative dispute resolution mechanisms. The inactivity of the party that has first initiated proceedings, or such court, was targeted in the Brussels I Recast.83 The Commission proposed a ‘court first seised shall establish its jurisdiction within six months except where exceptional circumstances make this impossible.’84 It was later abandoned. Such an approach may be criticised because it could be a disruptive rule in the Brussels IIter Regulation. It is questionable whether a common standard may be established to set a minimum or maximum timeframe for party engagement. Inserting a rule with a strict time frame could potentially foil the rationale of such a rule. Namely, time limits may fall too short for some, but unnecessarily long for other Member States because civil proceedings significantly vary in length throughout the EU. Thus, a provision or a recital would be more appropriate. The provision or recital should prescribe that a party is obliged to pursue the action and participate actively within a reasonable timeframe, and include a sanction for any noncompliant behaviour.

B.  Perpetuatio fori in Conjunction to Parallel Procedures Another procedural aspect that may increase the parallelism of actions is with the perpetuatio fori. A perpetuatio fori principle freezes jurisdiction, shields the plaintiff

82 M Danov, S Bariati, ‘The relationship between litigation and ADR: Evaluating the effect of the EU PIL framework on ADR/settlements in cross-border cases’ in P Beaumont et al (eds), Cross-Border Litigation in Europe (Oxford, Hart Publishing, 2017) 707. 83 O Karsten, H Prutting, H Dedek, ‘GROTIUS Program: Proposals for Amending Article 21 and 22 of the Brussels Convention’ (2000) 8 ERPL 276. 84 Proposal for a Regulation of the European Parliament and the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Recast), COM(2010) 748 final, 35.

Parallel Proceedings – Lis Pendens and Concurrent Procedures  219 from a change of circumstances, and thus promotes legal certainty. Still, if the circumstances do change, this rule may accelerate legal uncertainty and hamper procedural efficiency. Parties may bring proceedings in a new habitual residence, while the proceedings in the old one are still pending. If the old jurisdiction is bound by the perpetuatio fori principle, the court first seised must finish the proceedings, even if it does not have information about the situation of a child in the new environment.85 Brussels IIa adheres to the continental law principle of perpetuatio fori.86 Once the jurisdiction is established and the court is seised, it remains firm even though circumstances may change. However, once the decision is final, there is no obstacle for a party to initiate another procedure before the court of another Member State which holds jurisdiction due to the new circumstances of a case and the elapse of time. This attitude strongly advocates for the protection of the best interest of a child, service of justice with the court seised, and the fact that parental responsibility is mutable.87 The 1996 Hague Convention on the Protection of Children abandoned the perpetuatio fori principle.88 Since the jurisdiction is in the court of the habitual residence of a child, any movement of a child is a change of jurisdiction. Lack of coordination between the Brussels IIa and the 1996 Hague Convention on the Protection of Children affects their operation,89 and is most unwelcome. A very plastic scenario may be constructed.90 In the event that a child moves from the EU to a 1996 Hague Convention on the Protection of Children Contracting State, the jurisdiction of a EU court which is seised may not be declined. On the other hand, Article 13 of the 1996 Hague Convention on the Protection of Children prevents any new procedure in the new habitual residence of a child. Still, once the recognition of a judgment rendered in a Member State is sought in the 1996 Hague Convention on the Protection of Children Contracting State, recognition may be denied. If a country where the child has moved does not follow that principle, it would not recognise the judgment rendered in a state adhering to the principle. Fresh proceedings would have to be brought. This scenario should be avoided by abandoning the perpetuatio fori in the Brussels IIter Proposal as well.

C.  Lis pendens with Third States The first generation of the EU civil justice regulations provided no rules regarding the attitude towards parallel procedures in a third state. Similarly, the general approach of the regulatory scheme in international family and succession matters is that no rule is prescribed.91 85 T De Boer, ‘What We Should Not Expect from a Recast of the Brussels II bis Regulation’ (2015) 33 NedIPR 10, 16. 86 Practice Guide for the Application of the Brussels IIa Regulation 27, see publications.europa.eu/en/ publication-detail/-/publication/f7d39509-3f10-4ae2-b993-53ac6b9f93ed/language-en. 87 Beaumont and McEleavy (n 33) 800. 88 N Lowe, M Nicholls, The 1996 Hague Convention on the Protection of Children (Bristol, Jordan Publishing, 2012). 89 Beaumont and McEleavy (n 33) 801; M Gration et al, International Issues in Family Law: The 1996 Hague Convention on the Protection of Children and Brussels IIa (Bristol, Jordan Publishing, 2015) 71. 90 T Kruger, L Samyn, ‘Brussels II bis: successes and suggested improvements’ (2016) 12 JPIL 132, 132–68. 91 M Ni Shuilleabhain, Cross-border Divorce Law (Oxford, 2010) 206–08.

220  Mirela Župan and Martina Drventić So far, no CJEU ruling indicates whether the ongoing identical or related third country procedure should be considered or tolerated by a second seised EU Member State court. The Owusu judgment was an interpretation of a forum non conveniens doctrine.92 The CJEU clearly refrained from answering the hypothetical question ‘what if ’ there was a lis pendens or related action in a third state. However, the reasoning of a court on the mandatory nature of the rules on jurisdiction of the regulations led academics to conclude that any national rule (also the one on lis pendens) may not be employed if a court of a Member State holds jurisdiction.93 In line with this, one may argue that a court seised with jurisdiction must accept it and serve justice, regardless of the fact that the case has a strong connection with a third country, or even an already pending procedure there. Although the arguments are convincing, Owusu was not on lis pendens, neither should its interpretation be identified with it, since the CJEU finds that circumstances not identical.94 One must also accept that the existing legal lacuna has not been subject to any preliminary ruling procedure before the CJEU, the one and only EU law interpretative authority. Furthermore, national practice is diverse. Some Member States adhere to the old comity principle and domestic private international law rules give way to this foreign procedure. Stay or dismissal of proceedings is subject to conditions prescribed by national law in these cases. Some Member States follow the CJEU reasoning in Owusu and find no legal ground in the EU law to stop or decline jurisdiction. Hence, such a Member State court ignores a prior procedure in a third state, and refuses to stop cases before it. Such a diverse national practice is not welcome. Lack of clarification leads to parallelism in procedures. A judgment rendered in a Member State would usually produce no effect abroad. Such a scenario hampers international cooperation, puts pressure on procedural economy, and produces legal uncertainty. In child-related matters, it is contrary to the best interest of a child. If the Brexit agreement contains no rule on this point, it is expected that the forum non conveniens doctrine will return in the United Kingdom.95 Problems related to this issue will increase. Thus, a flexible approach in the Brussels IIter Proposal is needed to allow the courts of the Member States to consider proceedings pending before the courts of third states. Solutions along the lines of Articles 33 and 34 of the Brussels Ia Regulation should serve as a model for this matter.

D.  Cooperation in Relation to Lis Pendens National case law identified inconveniences that authorities have faced with the application of the lis pendens rule. Often they lacked any information either on the facts or the foreign procedural law required to establish the moment the court of another Member 92 C-281/02 Owusu (n 64) para 47–52. 93 P Torremans, A Mills, K Trimmings, U Grusic and C Heinze (eds) Chesire: Private International Law 15th edn (Oxford, Oxford University Press, 2017) 875ff, cf B Haidmayer, ‘Parallel rechtshängige Scheidungsverfahren in Deutschland und der Schweiz (KG Berlin, S. 74)’ (2010) 1 IPRax, 35–40. 94 C-281/02 Owusu (n 64) para 51. 95 P Beaumont, ‘Private international law concerning children in the UK after Brexit: comparing Hague Treaty law with EU Regulations’ (2017) 29 Child&FamLQ 16.

Parallel Proceedings – Lis Pendens and Concurrent Procedures  221 State was seised. A similar conclusion may be drawn from the CJEU recent case law in C-29/16 HanseYachts, where the interpretation of foreign procedural law remains decisive for applying the lis pendens rule. Cooperation is acknowledged as a tool of combating parallel procedures.96 These problems are the result of relevant national case law in relation to the Succession Regulation. Hence the changes should adhere to the evolution of the lis pendens rule of the Brussels Ia regime, and provide for a rule consistent with Article 29(2) that obliges a court to reveal the date it is deemed to be seised. Such a rule would contribute to the smooth and efficient service of the justice within the EU. The CJEU promotes direct judicial cooperation and urges Member States to communicate.97 Encouraging cooperation among the judges is the proper regulatory path to avoid forum shopping.98 The Brussels IIter Proposal is modelled on the respective provision of Article 29(2) of the Brussels Ia regime. And the Proposal should prescribe that, upon request by a court seised of the dispute, any other court seised shall without delay inform the former court of the date when it was seised.

V. Conclusions Regulations employ several layers of mechanisms to combat parallel judgments, and the rule on lis pendens and related actions is a cornerstone of this study. Provisions on lis pendens and related actions of the Brussels IIa Regulation, the Maintenance Regulation, and the Succession Regulation follow the model established with the Brussels Convention regime.99 However, the relevant area has been significantly upgraded by the CJEU interpretations and, accordingly altered by the Brussels Ia Regulation. Should the Brussels IIter Recast at least incorporate some of the Brussels I Recast, it would not be a revolution but would at least be an evolution. The Brussels IIter Proposal reflects almost none of those changes so that lis pendens and related procedure provisions remain untouched The firm transposition of the Owusu reasoning on lis pendens returns private international law far back to the historical beginnings of international cooperation. The first-initiated proceedings abroad are by default respected and taken into consideration by national systems under prescribed conditions. Owusu instantly applied to lis pendens cuts this long-standing treasure and signals that the European judicial area is self-standing. Such an attitude may endanger bilateral, but also multilateral cooperation. For the latter, the jointly agreed international agreement creates a certain circle of trust among the contracting parties of a respective convention. In this respect, the Brussels IIter Proposal change derives from the disconnection clauses of Article 75(2) (c) of the Proposal. Accordingly, the lis pendens and related procedures in relation to 96 M Menne, ‘Direct Judicial Communication: Dialogue of Judges – European Liaison Judges and Judges of the International Hague Network of Judges’ Judges’ Newsletter (vol XXI/2018) 27; C Honorati (ed), Jurisdiction in matrimonial matters, parental responsibility and abduction proceedings A Handbook on the Application of Brussels IIa Regulation in National Courts (Torino, Giappichelli – Peter Lang, 2017) 280. 97 Case C-491/10 PPU Joseba Andoni Aguirre Zarraga v Simone Pelz [2010] ECR I-14247, ECLI:EU:C:2010:828 paras 42 ff. 98 Professor Hess reports on a case where a German judge decided to transfer to a Scottish court after electronic communication with another judge, Hess (n 35) 14. 99 On the case law in lis pendens matters, see Viarengo and Villata (n 36) 55 ff.

222  Mirela Župan and Martina Drventić the 1996 Hague Convention on the Protection of Children Contracting States would be settled, but the third country scenario remains controversial to any other third country relation. The EUFam’s valuable national case law speaks of the huge number of parallel procedures, in different scenarios. Invoking lis pendens resulted in various open questions and diverging national practices. Most scenarios are clashes of national procedural law rules with the provisions of a Regulation, which could hardly be eliminated without procedural law unification. Nevertheless, the evolution accomplished in the context of the Brussels Ia should not be neglected. The attitude towards avoiding parallelism of procedures should be advocated, with certain amendments that go even beyond that prototype model.

16 Exceptio Rei Judicatae ELENA D’ALESSANDRO

I.  Recognition Arising as an Incidental Question Brussels IIa and the Maintenance Regulation conceive of the recognition of decisions rendered in Member States as automatic. Decisions should be applied in subsequent proceedings, concerning similar or related causes of action, and between the same participants allowing them to benefit from the preclusive effects of a judgment enacted in another Member State. The interested party has merely to submit a copy of the decision and the certificate – in the forms set out in the annexes of Brussels IIa or, as applicable, in the annexes of the Maintenance Regulation – to the relevant court; there is no need to get a judgment in the recognising Member State to declare that the decision can produce its effects in the second State.1 The rules of claim preclusion of the Member State of origin apply.2 Consequently, a judicial decision can be invoked in another Member State by way of an exceptio of res judicata, insofar as it has preclusive effects in its state of origin. From that moment on, the rules on parallel proceedings will no longer apply, as one of the two proceedings is no longer pending. More precisely, res judicata can be invoked: (i) To prevent the plaintiff from reasserting in the second proceedings the same cause of action which was the subject of a judgment in the first; or (ii) In proceedings on a related cause of action, to prevent the unsuccessful party in the previous proceedings from disputing the correctness of the earlier decision 1 The need for a declaratory judgment may arise when such effects are debated between the parties: Monomeles Protodikeio Rodou, 21 December 2015, ELF20151221. 2 Case 145/86 Horst Ludwig Martin Hoffmann v Adelheid Krieg [1988] ECR 645, ECLI:EU:C:1988:61. See also S Harder, ‘The Effects of Recognized Foreign Judgments in Civil and Commercial Matters’ (2013) 62 ICLQ, 441 f. For instance, in Italy a final judgment merely ‘bars any action to obtain the same relief (petitum) as that sought in the previous action, provided that it is based on the same factual and legal basis (causa petendi) as those relied on in the prior action’, without any issue estoppel: M Cappelletti and JM Perillo, Civil Procedure in Italy (The Hague, Martinus Nijhoff, 1965) 253. Indeed, an English final judgment will create a res judicata estoppel, but also an issue preclusion effect, precluding relitigating each issue that was determined by the court to establish the entire cause of action: House of Lords, Arnold v National Westminster Bank Plc [1991] 2 AC 93, [1991] 3 All ER 41, [1991] 2 WLR 1177.

224  Elena D’Alessandro in law (or in fact, if permitted by the rules on issue preclusion of the Member State of origin). It is debatable whether private separations or divorces, having in their Member State of origin the same legal effects as a judicial decision regarding the new status of the former spouses, can be recognised as decisions through Brussels IIa, in the same way as final judgments3. Every time that an exceptio rei judicatae is invoked by one of the parties, it is for the court addressed to verify: (i) Whether such decision has preclusive effects according to the rules of claim or issue preclusion of the Member State of origin; and (ii) Whether such decision falls within the scope of Brussels IIa or Maintenance Regulation. As noted,4 the court cannot raise on its own motion the issue of the recognition of a judgment from another EU Member State when no other party to the proceedings seeks the refusal of the recognition. The court will decide whether a ground for refusal of recognition exists without res judicata effects (thus recognition arises as an incidental question).

3 The issue is highly controversial. Briefly summarising, the arguments in favour of recognition of private separations/divorces as judicial decisions (‘prozessualer Anerkennung’) are that: 1) Private separations or divorces have, in their Member State of origin, the same legal effects as a judicial decision, and 2) Private separations or divorces cannot be treated as mere agreements whose effects are recognisable according to the conflict-of-law rules of the Member State where recognition is required (‘Privatanerkennung’), because of the constitutive involvement of a national authority (such as a notary, a civil status officer or a public prosecutor), whose endorsement is indispensable to making agreements effective: M Pika and MP Weller, ‘Privatscheidungen zwischen Europäischem Kollisions- und Zivilprozessrecht’ (2017) IPrax 65–71. The legal arguments in support of the inapplicability of Brussels IIa are as follows: 1) Private separations or divorces are pronounced without any court involvement. Consequently, they cannot be considered as a ‘judgment’ in the sense of Art 2 Brussels IIa (K Siehr, in U Magnus and P Mankowski (eds), Brussels II bis Regulation (Munich, Sellier, 2012) 264) or even recognised pursuant to Art 46 Brussels IIa, as the new status of the former spouses cannot be considered an ‘enforceable’ effect of the agreement (V Gärtner, Die Privatscheidung im deutschen und gemeinschaftsrectlichen Internationalen Privat-und Verfahrensrecht (Tübingen, Mohr, 2008) 345 ff; M Buschbaum, ‘Ausländische einvernehmliche Notarscheidung vor deutschen Gerichten: Art. 46 Brüssel IIa-Verordnung im Gefüge der unionsrechtlichen Vorschriften über die Zirkulation öffentlicher Urkunden’ in A Dutta, D Schwab, D Henrich, P Gottwald and M Löhnig (eds), Scheidung ohne Gericht (Bielefeld, Gieseking, 2017) 353 ff. 2) Public authorities involved in the registration proceedings of private divorces do not usually check whether the Member States in which they are located have jurisdiction over the case according to Brussels IIa. 4 P Beaumont and L Walker, ‘Recognition and Enforcement of Judgments in Civil and Commercial Matters in the Brussels I Recast and Some Lessons from it and the Recent Hague Conventions for the Hague Judgments Project’ (2016) JPIL 31–63, 36.

Exceptio Rei Judicatae  225

II.  Burden of Proof Even when recognition arises as an incidental question, the party seeking the exceptio rei judicatae rejected by the court addressed bears the burden of proof for refusal of recognition according to the following analysis.5

III.  Grounds for Refusal of Recognition The grounds for non-recognition in the Brussels IIa and Maintenance Regulation are exhaustive, as the EU Regulations in family matters facilitate recognition of decisions within the European Judicial Area. Neither Brussels IIa nor the Maintenance Regulation allow the court addressed to ascertain whether the court of origin had jurisdiction over the case.6 Consequently, as in the Brussels IIa regime, control of jurisdiction is not permitted in the recognition phase, nor can it be a ground for refusal of recognition. Therefore, treating private divorces as judicial decisions, and including them within the scope of application of Brussels IIa, may circumvent the application of the mandatory rules on jurisdiction provided by the Regulation.7 Furthermore, the mere fact that a foreign judgment having preclusive effects has been appealed in the Member State of origin, cannot be considered a ground for refusal of recognition.8 However, if the appeal is successful, such a judgment will cease to produce its effects in the Member State of origin, as well as in the Member State where the exceptio rei judicatae has been invoked.

IV.  Substantial Public Policy Mutual recognition implies that recourse to public policy can be envisaged only where recognition of a decision delivered in another Member State would be unacceptably at variance with the legal order of the requested state and infringes a fundamental principle, which may be substantive or procedural in nature.9 5 P Gottwald, ‘Article 21 of Brussels IIa’ in Münchener Kommentar zum FamFG, 2 Auflage (Munich, Beck, 2013) 14 and 15; P Wautelet, ‘Article 36’ in U Magnus and P Mankowski (eds), ECPIL. Commentary, vol I, Brussels Ibis Regulation (Cologne, Otto Schmidt, 2016) 813–24. 6 E Gallant, ‘Règlement Bruxelles II bis (Matières matrimoniale et de responsabilité parentale)’ in Repertoire de droit international (Paris, Dalloz, 2013–15) § 242; K Siehr, ‘Article 22’ in U Magnus and P Mankowski (eds), ECPIL. Commentary. Brussels II bis Regulation (Cologne, Otto Schmidt, 2017) 297. 7 E Giunchi, ‘Chapter 9. Cross-Cultural Issues’ in I Viarengo and F Villata (eds), Planning the Future of Cross-Border Families: A Path through Coordination (Final Study, EUFam’s Project, 2017) 297ff at www.eufams. unimi.it/wp-content/uploads/2017/12/EUFams-Final-Study-v1.0.pdf; D Heinrich, ‘Scheidung auf Italienisch’ (2017) Jahrbuch für Italienische Recht 13. This is the reason why, on 19 April 2017, Professor C Nourissat and the lawyers A Boiché, D Eskenazi, A Meier-Bourdeau and G Thuan filed a complaint before the European Commission against France as an EU Member State for a violation of the obligations arising from the Brussels IIa Regulation, because the French private divorce reform entered into force on 1 January 2017. 8 OLG Düsseldorf, 28 April 2015, 1 UF 261/14, DES20150428. 9 V Lipp, ‘Article 24’ in Münchener Kommentar zum FamFG, 2 Auflage (Munich, Beck, 2013) 2–10.

226  Elena D’Alessandro In family matters, the factors relied on as being contrary to public policy are seldom substantive, but more often related to what is referred to as procedural public policy. More precisely, substantive public policy as a ground for refusal of recognition is often invoked, but seldom successful. In Italy, for instance, the lack of a prior legal separation as a breach of the Italian substantive public policy has often been invoked, without success, to deny recognition of divorces obtained abroad. Italian courts constantly make clear that, pursuant to Article 22(a) Brussels IIa, a judgment of divorce rendered abroad in the absence of a previous decision on legal separation cannot be considered as inconsistent with Italian substantive public policy, even though, under Italian law, legal separation is a necessary step to obtain a divorce.10 Similarly, a divorce judgment containing no financial arrangements in favour of the children cannot be considered in contradiction with the substantive public policy of the Member State of recognition, as the children or their representatives can claim maintenance in the Member State with jurisdiction over the claim.11

V.  Procedural Public Policy The national case law, particularly the national case law collected in the EUFam’s database, never refers to procedural public policy as a ground for refusal of recognition, other than from the lack of service of documents in Brussels IIa. This approach supports abolishing this kind of obstacle to the free circulation of judgments de jure condendo. More precisely, the notion of ‘manifest breach of procedural policy’ seems to be applied narrowly, consistent with CJEU case law on this subject. For example: quoting the CJEU case Trade Agency Ltd,12 it has been held13 that there was no infringement of public policy in a case where one of the parties renounced his right to be assisted by an interpreter during the foreign proceedings.14 Accordingly, the mere fact that paternity was ascertained solely based on the mother’s testimony does not constitute a breach of procedural public policy when the father had the chance to request a DNA test during the foreign proceedings.15

10 Ex multis App Bologna, 18 November 2014, ITS20141118; Trib Florence, 9 March 2015, ITF20150309; Trib Belluno, 5 November 2010, ITF20101105. 11 Trib Belluno, 5 November 2010, ITF20101105. In terms: I Viarengo, ‘Rapporto sull’applicazione in Italia del Regolamento (CE) N. 4/2009 del 18 dicembre 2008 relativo alla competenza, alla legge applicabile, al riconoscimento e all’esecuzione delle decisioni e alla cooperazione in materia di obbligazioni alimentari’ in S Bariatti, I Viarengo and F Villata (eds), La giurisprudenza italiana sui regolamenti europei in materia civile e commerciale e di famiglia (Padova, Cedam, 2016) 416 fn 29. 12 Case C-619/10 Trade Agency Ltd v Seramico Investments Ltd [2012] ECLI:EU:C:2012:531. 13 OLG Karlsruhe, 27 January 2014, 8 W 61/13, DES20140127. 14 Which is in principle essential to the exercise of the right of defence: P Biavati, ‘Riconoscimento ed esecuzione dei provvedimenti stranieri, con particolare riferimento alla materia familiare’ (2017) Judicium 18 ff. 15 OLG Hamm, 28 June 2014, II-11 UF 279/11, DES20120628. OLG Stuttgart, 13 February 2012, 17 UF 331/11, DES20120213 reached the same conclusion in a case concerning the enforcement of a Czech judgment granting maintenance, merely based upon the statement of the applicant, according to which the defendant was the father of the child.

Exceptio Rei Judicatae  227

VI.  Service of Documents National case law on service on the defendant of the document instituting proceedings as a ground for refusal of recognition of a default judgment, in the context of both Brussels IIa and the Maintenance Regulation, is consistent and uniform. This ground for refusal of recognition seems to be the most frequently invoked in decisions on matrimonial matters, often to avoid recognition of decisions on parental responsibility. In particular: (i) An absence of notification or errors deliberately committed in serving the defendant with the claim form,16 such as deliberately serving the defendant at his former address,17 is unanimously considered a ground for refusal of recognition.18 The burden of proof is on the person who failed to appear in the foreign proceedings;19 and (ii) Even though the defendant was served with the claim form, the lack of an adequate period allowing the defendant to prepare an answer is a ground for refusal of recognition20 following the ruling of the CJEU in Trade Agency.21

VII.  Irreconcilability Among Decisions The most controversial issue concerning refusal of recognition for irreconcilability between decisions is its scope of application. It is debatable whether it can play a role in impeding the successful proposal of an exceptio rei judicatae in cases of infringement of the rules on lis alibi pendens by the court of the Member State where the judgment was rendered. Because refusal of recognition must be interpreted strictly, the mere fact that a judgment was rendered in breach of the rules concerning lis alibi pendens is not a sufficient reason for refusing recognition in matrimonial matters22

16 On the contrary, as the grounds for refusal of recognition must be interpreted restrictively, the absence of notification of the final divorce judgment does not constitute a valid reason for refusal of recognition of a previous decision rendered in another Member State: KS Hradci Králové, 3 January 2011, CZS20110103. App Catania, 27 May 2014, ITS20140527 has come to the same conclusion, affirming that a default judgment on maintenance, which became final without notification to the person who failed to appear, cannot be considered manifestly contrary to public policy ex Art 24(a) Maintenance Regulation. 17 Cour d’Appel d’Orléans, 10 September 2007 No 05/03482, FRS20070910 referring to the Brussels I Regulation, in force at that time for maintenance obligations. 18 Audiencia Provincial of Barcelona, 20 February 2015 No 58, ESS20150220; AG of Berlin Pankow/ Weißensee, 20 March 2009, 28 F 935/09, DEF20090320. 19 OLG Nuremberg, 7 October 2014, 7 UF 694/14, DES20140710. 20 Audiencia Provincial of Barcelona, 20 February 2015, No 58, ESS20150220, quoting C-619/10 Trade Agency (n 12) paras 32 and 33. 21 C-619/10 Trade Agency (n 12) paras 32 and 33. 22 OS Rimavská Sobota, 24 May 2012, 9P/8/2011, SKF20120524. Consequently, the judgment rendered by the Court of Rohrbach in Upper Austria has been recognised in Slovakia; Trib Roma, 19 January 2016, ITF20160119a, recognising a Romanian judgment of divorce in Italy, even though the Romanian court, which was the court second seised, did not declare lis alibi pendens according to Art 19 Brussels IIa.

228  Elena D’Alessandro if it is not accompanied by a later irreconcilable judgment23 with effects in the requested Member State.24

VIII.  Prohibition of Review on the Merits There is very little case law on the applicability of the prohibition of review on the merits. Consequently, there is little positive guidance, except to clarify that the court addressed cannot autonomously evaluate the habitual residence of the child, which is prohibited by Article 24 Brussels IIa, at least when the habitual residence of the child acts as the basis of the Member State of origin jurisdiction.25 In that respect, the court cannot verify whether the judge of the Member State of origin has correctly ascertained and evaluated all the relevant facts.26

IX.  Lack of Hearing of the Child In the context of Brussels IIa, the lack of hearing of the child as a ground for refusal of recognition of decisions in matrimonial matters has been seriously considered by the German Courts in relation to Article 23(b).27 This demonstrates a discrepancy in the interpretation of this ground for refusal of recognition between the different Member States.28 As noted,29 ‘the national rules and practices on hearing children vary significantly and sometimes the courts are reluctant to explain, in the decision, why the hearing of the child has been considered inappropriate’.30 In principle, the age at which children 23 For details see T Pfeiffer, M Escher and J Wittmann, ‘The Fragmentation of the Recognition and Enforcement Regimes’ in Ch 22 of this book. 24 CJEU, case. C-386/17, Liberato v Gregorescu, ECLI:EU:C:2019:24. 25 Ústavní soud, 8 September 2015, No S 3742/14, CZC20150908. 26 BGH, 8 April 2015, XII ZB 148/14, DET2015408. 27 Compare R Bosisio, ‘Children’s Right to be Heard. What Children Think’ (2012) 20 International Journal of Children’s Rights, 141–54; M Weller, in C Althammer, Brüssel IIa, Rom III (Munich, Beck, 2014) 161 ff; O Lopes Pégna, ‘L’interesse superiore del minore nel regolamento n. 2201/2003’ (2003) RDIPP 376 ff; T Kruger, L Samyn, ‘Brussels II bis: successes and suggested improvements’ (2016) 12:1 JPIL 156 ff. According to the MC Baruffi, C Fratea, D Danieli and C Peraro Report on the Outcome of the Online Questionnaire (EUFam’s Project 2017) 43 at www.eufams.unimi.it/wp-content/uploads/2017/06/EUFAMS-Report-Outcomes-OnlineQuestionnaire.pdf, the lack of the hearing of the child is the ground for refusal of recognition which, in practice, has been most frequently referred to and applied to deny effects to decisions on parental responsibility. 28 Commission Staff Working Document, Impact Assessment accompanying the Proposal for a Council Regulation on Jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility and on international child abduction (recast), SWD (2016) 207 final 57. According to the Report on the Outcome of the Online Questionnaire (n 27) 44, among the 114 participants who answered question no 33, 73 expressed the opinion that a higher degree of uniformity at the EU level – for instance in defining the minimum age required for a child to be heard – would be useful to minimise the use of this ground for refusal of recognition. 29 Commission Staff Working Document, Impact Assessment (n 28) 57. 30 MC Baruffi, ‘La responsabilità genitoriale: competenze e riconoscimento delle decisioni nel regolamento Bruxelles II’ in SM Carbone and I Queirolo (eds), Diritto di famiglia e Unione europea (Turin, Giappichelli, 2008) 279. The failure to indicate, in the decision, why the hearing of the child was considered inappropriate by the court has caused the annulment of such judgment in a case decided by the Cass, 3 April 2017 No 8617 (2017), Part I, 1532 Foro italiano.

Exceptio Rei Judicatae  229 are considered sufficiently mature to present their views ranges from 10 to 15. For instance, in Spain,31 as well as in Italy, children are considered sufficiently mature at the age of 12 (Article 315bis of the Italian Civil Code), whereas in other Member States, like in Germany,32 courts hear much younger children, such as three years old.33 The Aguirre case34 clarified that, in regard to Article 42(2)(a) Brussels IIa, it is not required that ‘the court of the Member State of origin obtains the views of the child in every case by means of a hearing’ because ‘that court … retains a degree of discretion’. As a result, Germany has adopted strict standards on the hearing of the child as a ground for refusal of recognition,35 except, of course, in urgent cases, as referred to in Article 23(b).36 On the contrary, in non-urgent cases, German courts have focused on the interest of the child, and as a result, the ground for refusal of recognition listed in Article 23 Brussels IIa has been interpreted widely. For example, a German court37 refused to recognise an Italian judgment relating to parental responsibility because the children (10 and almost six years old at the time of the proceedings) had not been heard during the Italian proceedings before the Juvenile Court. In the case at hand, the children had only been summoned to appear before the Italian court, which was not deemed sufficient by the German court, as children’s hearings are not optional, even though the children’s hearing was appropriate in Italy regarding the age of the children and their degree of maturity. A child, at the age of three, must be heard in German proceedings regarding parental responsibility. Another German court38 denied the enforcement of a French decision granting to the father the custody of his three-year-old child, per Article 23(b) Brussels IIa. To avoid such discrepancies, which impede the free circulation of judgments, the new Brussels IIter Proposal39 eliminates the hearing of the child as a ground for refusal of recognition. At the same time, the Brussels IIter Proposal introduces, in Article 20, an explicit obligation for the courts – but not for the authorities involved in private divorces – to give children (ie any person below the age of 18 according to Article 7(2) of the Proposal) an opportunity to express their views. Additionally, the court must give due weight to such views. An account of the hearing and of the weight accorded to the child’s view must be given in the reasoning of the decision, as well as in the certificate (annex II) accompanying the judgment. On the contrary, notice of the hearing is not required by the certificate

31 According to Art 770 of the Spanish Code of Civil Procedure. See Iglesias Casarrubios and Cantalapiedra Iglesias v Spain App no 23298/12 (ECtHR, 11 October 2016) para 18. 32 P Gottwald, ‘Article 23 of Brussels IIa’ in Münchener Kommentar zum FamFG, 2 Auflage (Munich, Beck, 2013) 3 quoting the leading decision of the German Constitutional Court, BVerfG, 26 September 2006, 1 BvR 1827/06, NJW 2007, 1266. 33 Or 10 years old in Romania (Art 264 of the local civil code). 34 Case C-491/10 PPU Joseba Andoni Aguirre Zarraga v Simone Pelz [2010] ECR I-14247, EU:C:2010:828 paras 65–66. 35 Under German Constitutional Law, the child must be heard by the deciding court: Siehr (n 3) 282. 36 BGH, 8 April, 2015, XII ZB 148/14, DET2015408 and OLG Stuttgart, Beschluss 5 March 2014, 17 UF 262/13, DES20140305. 37 OLG Schleswig Holstein, 19 May 2008, 12 UF 203/07, DES20080519. 38 OLG Hamm, 26 August 2014, 11 UF 85/14, DES20140826. 39 Brussels IIter Proposal 57, commented by MP Weller‚ ‘Die Reform der EuEheVO’ (2017) IPRax, 222 ff.

230  Elena D’Alessandro accompanying authentic instruments or out-of-court agreements. The Member States remain free to determine at what age the child is entitled to be heard, and who must hear the child, without changing their national rules (see Recital 23 of the Brussels IIter Proposal); Member States may organise the hearing and the weight that must be given to the child’s view, thus bypassing the problems related to the lack of standards on the required age. The new Brussels IIter Proposal seems not to solve all the problems: the lack of hearing of a child, put in place by the court without giving any sort of motivation for the exclusion in the reasoning for the decision, will continue to be considered a breach of requirements for a fair trial, according to Article 6 of the European Convention on Human Rights, as interpreted by the ECHR decision in Casarrubios.40 This may cause a denial of recognition arising as an incidental question for inconsistency with the European procedural public policy.

40 Iglesias Casarrubios and Cantalapiedra Iglesias v Spain (n 31) para 18. See also Case C-455/15 PPU P v Q [2015] ECLI:EU:C:2015:763 paras 38–39.

part v Applicable Law

232

17 Coordination Among the Objective Connecting Factors in Proceedings on Divorce, Maintenance, Property Regimes and Succession ILARIA VIARENGO

I.  The Fragmentation of EU Private International Law in Family Matters and Succession The legislation of the European Union on family matters is spread over multiple Regulations that regulate relations of a different nature, but that are interconnected in a fragmentary manner, and for which unitary treatment would be convenient. The EU system of Private International Law (EU PIL) in family matters has progressively extended its scope from divorce and legal separation to the financial aspects of family life. The system has approached a further extension with the new Regulations on property regimes with respect to marriage and registered partnerships. Actually, this will occur at least for the Member States that take part in the enhanced cooperation, which is the road taken by the European legislature in order to have the two Regulations adopted. On 9 June 2016, the Council of the European Union adopted Decision (EU) 2016/954 authorising such enhanced cooperation. Seventeen Member States addressed a request to the European Commission indicating their wish to establish enhanced cooperation between themselves after the failure, in December 2015, to reach a political agreement among all Member States on the proposals relating to matrimonial property regimes and registered partnerships adopted on 16 March 2011.1

1 Council Decision (EU) 2016/954 of 9 June 2016 authorising enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions on the property regimes of international couples, covering both matters of matrimonial property regimes and the property consequences of registered partnerships [2016] OJ L159/16. On the two Proposals of 2011 (COM(2011) 126 final and COM(2011) 127 final) see I Viarengo, ‘The EU Proposal on Matrimonial Property Regimes’ 13 (2011) YBPrIL 93; C Gonzáles Beilfuss, ‘The Proposal for a Council Regulation on the Property Consequences of Registered Partnerships’ (2011) 13 YBPrIL 183.

234  Ilaria Viarengo The objective of all these Regulations is to increase legal certainty, predictability and party autonomy with the ultimate goal of removing obstacles from the free movement of persons. Divorce proceedings, maintenance obligations and matrimonial property regimes have been kept conceptually separate in the framework of European Union law, and have been regulated with different Regulations, which, in their scope, provide for express and mutual exclusions. Nonetheless, in practice these matters are often addressed in the same action for divorce. Issues such as assigning the matrimonial home and the definition of the obligation of one spouse to financially support the other are strongly and substantially connected to the ruling on divorce and to the conditions and reasons that ground that ruling. Furthermore, the Succession Regulation comes into the picture. The strong interaction in every legal system between matrimonial property and succession laws justifies the need for coordination with respect to jurisdiction and of the law applicable to both. Characterisation problems regarding borderline rules between matrimonial property and succession laws,2 as well as consistency and adaptation problems related in particular to the protection of the surviving spouse or partner, can arise with the application of different laws. In practice, the liquidation of the property regimes is very often a question preceding the liquidation of the estate of a deceased person. In this regard, and in almost all legal systems, the extent of the participation of the surviving partner or spouse in the succession is affected by the marriage or partnership property rules. In systems where the legal regime is the shared property regime this participation is generally less significant. By contrast, in those Member States where the property of spouses or partners is separate property such participation tends to be greater. Therefore, it would be advisable to submit all of these questions to a single, national law. Put in other words, the matrimonial regime may considerably modify the outcome of the rights of the spouse with respect to the estate. With regard to parental responsibility, the Brussels IIa Regulation provides for rules concerning jurisdiction, recognition and enforcement of decisions, and cooperation between central authorities. The law applicable to parental responsibility, lacking an EU PIL instrument, is determined in accordance with the 1996 Hague Convention on the Protection of Children, which has entered into force, among others, for all EU Member States. The importance of these issues is in fact likely to increase because the number of couples with an international dimension is increasing: spouses of different nationalities, spouses of the same nationality but living in a state where they are not nationals or owning assets in different states or even couples divorcing or dying in a country other than that of their origin. The mobility of persons is increasing as well as the trend to get divorced. Coordination between divorce and the financial aspects of family life, ie property and maintenance, and between succession and property is also needed for practical reasons related to the interests of the parties concerned. 2 Case C-558/16 Doris Margret Lisette Mahnkopf [2018] ECLI:EU:C:2018:138 has recently settled a problem of characterisation of a German issue, the increase of the surviving spouse’s share under §1371(1)BGB. It was argued whether it is a part of succession law or belongs to the field of matrimonial property law.

Coordination Among the Objective Connecting Factors  235 In the most recent Regulations in the field of matrimonial property and property consequences of registered partnership, the quest for coordination plays an essential role, in particular in the jurisdiction rules.3 Therefore, the two Regulations contain special rules in order to ensure the concentration of proceedings. Unfortunately, the need for coordination with respect to jurisdiction between divorce and its financial consequences has not been taken into account in recasting Brussels IIa (ie Brussels IIter Regulation). Provided that the final and principal goal of EU family law legislation is ‘maintaining and developing an area of freedom, security and justice in which the free movement of persons is ensured’4 from a practical point of view two needs seem to be mainly relevant. Firstly, the need to avoid litigation proceedings in different jurisdictions with duplicate proceedings and expenses. Secondly, given the ties between these fields of law, it is argued that divorce and all the financial aspects, on the one hand, and succession and property aspects, on the other, need to be governed by the same law. In this paper, the need for coordination will be dealt with by examining the coherence among the objective connecting factors provided in the above-mentioned Regulations.

II.  Defining a Cross-Border Situation The solution of some general issues, as a preliminary matter, the definition of ‘habitual residence’ and the issue of dual nationality could have an impact on the coordination among the above-mentioned instruments. These issues are dealt with in other chapters of this volume. The question of what constitutes a cross-border situation may also be relevant to the joint application of such instruments. The two Regulations on property consequences of marriage or registered partnerships make reference to the ‘cross-border implications’ of the property regimes in Recital 14. They differ, in this respect, from the Rome III Regulation which, in line with the corresponding provisions established in the Rome I and Rome II Regulations, provides that it shall apply in ‘situations involving a conflict of laws’. With regard to Rome III, the legal doctrine questioned whether Article 1(1) of the Regulation should be interpreted as meaning that any international aspects that occurred during the marriage must be taken into account.5 Actually, for Rome III the question only arises in practice when the spouses’ choice of law represents the only foreign element of the relationship at the time the court is seised. It is true that choice of law is not allowed without limits, but circumstances may have changed after the agreement is reached. Such would be the situation of a couple of the same nationality who, after having lived the first years of their marriage in another 3 Recital 32 of both the Matrimonial Property Regimes Regulation and Regulation on the Property Consequences of Registered Partnerships (collectively, the Property Regimes Regulations). 4 Recital 1 of Matrimonial Property Regime Regulation. 5 For an affirmative answer see K Boele-Woelki, ‘For Better or for Worse: The Europeanization of International Divorce Law’ (2010) 12 YBPrIL 13; P Franzina, ‘The Law Applicable to Divorce and Legal Separation under Regulation (EU) No. 1259/2010 of 20 December 2010’ (2011) CDT 103; P Hammje, ‘Le nouveau règlement (UE) n° 1259/2010 du Conseil du 20 décembre 2010 mettant en œuvre une cooperation renforcée dans le domaine de la loi applicable au divorce et à la séparation de corps’ (2011) RCDIP 308 ff.

236  Ilaria Viarengo Member State, come back to their Member State of origin. If they have concluded an agreement choosing the law of that state, this agreement should be upheld even if at the time of seising the court the situation does not involve any other international element. If, on the contrary, the spouses have not entered into any prior agreement, their situation, at the moment the court is seised, is purely domestic. Therefore, the lex fori will govern their divorce, whether or not the Regulation is deemed to be applicable. For matrimonial property the question makes no sense anymore provided that, in absence of a choice, the first habitual residence of the spouses is the first connecting criterion in the cascade system provided in Article 26. Once again, if spouses sharing the same nationality change their residence during their marriage and move back to their Member State of origin, the court seised will have to apply the law of the first residence, regardless of the fact that at that time the situation no longer has international elements. Moreover, the Property Regime Regulations apply to couples of the same nationality and habitual residence with assets located in a Member State other than that of their nationality or residence. Much more questionable is whether such a situation comes within the scope of the Rome III Regulation, provided that it does not seem to involve a conflict of laws for the divorce proceedings. In contrast, the Brussels IIa Regulation, the Maintenance Regulation and the Succession Regulation make no reference to the transnational character of the situation in defining their scope.

III.  The Quest for Coordination: Property Aspects of Marriage and Registered Partnerships, Maintenance and Divorce It is highly advisable to allow the same law to govern all different issues related to the dissolution of the marriage or partnership. Furthermore, the need to coordinate among the EU instruments becomes apparent because spouses litigate over the financial consequences of divorce. As a result, it seems reasonable, and in the parties’ interests, to have the divorce and related financial aspects governed by the same law. With respect to the maintenance obligations, the main problem is that of their characterisation and whether they are distinguishable from matrimonial regimes. There is no doubt that the concept of ‘maintenance obligation’ should correspond to the autonomous notion adopted in the Maintenance Regulation. Nevertheless, in practice, separating maintenance and property for jurisdictional and enforcement purposes could be very difficult, and not only for countries such as the UK and Ireland.6 It can lead to effects contrary to the purpose of the new Regulations, which is to permit disputes concerning an international family to be dealt with by a single court in one place and forum.

6 This is indeed alien to the area of family law in common law systems. See D Hodson, ‘Observations on the EU Property Rights Proposals’ (2011) IFLJ 98 ff.

Coordination Among the Objective Connecting Factors  237 Although it is true that in the different EU legislative texts the same connecting factors (in particular habitual residence and nationality) have been generally used, it is nevertheless also true that the moment they are referred to is often different. As a result, the applicable laws can prove to operate differently. As already mentioned, lacking a choice-of-law agreement between the parties, the law applicable to the matrimonial property regimes will be determined by a cascade of connecting factors, while Article 26(1) of the Regulation on the Property Consequences of Registered Partnerships establishes only one connecting factor: the law under which the relationship was created.7 The first criterion is the first common habitual residence, established ‘shortly after marriage’.8 Other connecting factors are the common nationality of the spouses and the joint closest connection at the time of the conclusion of the marriage. There is also a rather complex escape clause allowing a court to depart from the reference to the first common habitual residence of the spouses. It is subject to the condition that the spouses had their last common habitual residence in another Member State for a significantly long period of time if both of them had relied on this law in arranging or planning their property relations. There is also an exception for registered partnerships with respect to the country of registration.9 The exception has the same structure as for matrimonial property. What constitutes a significantly long period of time is not defined. In the domestic law of the other Member State there must be rules on property consequences for registered partnerships. Article 26 of the Matrimonial Property Regime Regulation refers to the common, habitual residence at the time of marriage as the first connecting factor in a cascade of connecting factors, while Article 8 of Rome III refers to the moment at which the court is seised for divorce proceedings. On its part, the Maintenance Regulation establishes, as a general rule, the application of the law of the current habitual residence of the creditor,10 or, in certain circumstances, the law of the Member State to which the spouses are more closely connected, in particular that of their last common habitual residence.11 The Matrimonial Property Regime Regulation does not contain a specific provision to apply the same law to divorce and legal separation, as, on the contrary, it explicitly provides for the determination of jurisdiction. Without the parties’ agreement, a dissociation between the applicable laws may frequently happen. A similar dissociation may also result with respect to the law applicable to maintenance. To this regard, the choice of the first common habitual residence as an immutable connecting factor in the Matrimonial Property Regime Regulation has already been criticised by commentators with regard to the Proposal.12 In case of a change of 7 The reason for this deviation from the matrimonial property regimes seems to be that registered partnerships are not recognised in all Member States. Since many Member States do not recognise registered partnerships, a reference to the habitual residence or the nationality of the partners would leave them without protection. 8 Recital 49 of the Regulation on the Property Consequences of Registered Partnerships. 9 Art 26(2) of the Regulation on the Property Consequences of Registered Partnerships. 10 Art 3 of the Maintenance Regulation. 11 Art 5 of the Maintenance Regulation. 12 A Bonomi, ‘The Proposal for a Regulation on Matrimonial Property: A Critique of the Proposed Rule on the Immutability of the Applicable Law’ in K Boele-Woelki, N Dethloff and W Gephart (eds), Family Law and Culture in Europe: Developments, Challenges and Opportunities (Antwerp-Oxford-New York, Intersentia, 2014) 231.

238  Ilaria Viarengo residence by the spouses, the law of the first common habitual residence of the spouse inevitably differs from the law which is applicable to other related issues under the EU Regulations. Suffice it here to take the following example. A German husband and a Czech wife, after having lived in Germany, move to Spain, where after several years they apply for divorce. In this case, the proceedings can be concentrated in one single court, pursuant to Article 5(1) of the Matrimonial Property Regime Regulation and Article 3(c) of the Maintenance Regulation. On the contrary, divorce and the connected issues are not subject to a single law. German law would be applicable to the matrimonial property, as the law of the first habitual residence of the spouses after marriage, according to Article 26(1)(a) of the Regulation. Spanish law would apply to the divorce, as the law of their habitual residence at the time the court is seised pursuant to Article 8(a) of Rome III as well as to maintenance, pursuant to Article 3 of the Maintenance Regulation. The scenario will get more complicated if the husband in this example, after the couple have lived together in Germany and then in Spain, moves to another country, such as France. After one year, he files for divorce there. Again, the concentration of the proceedings in the same jurisdiction is still possible, but not automatic. The jurisdiction of the French court is based on Article 3(1)(a) fifth indent of Brussel IIa, because it is the court in which the applicant is habitually resident for at least a year immediately before the application. In order to have the related matrimonial property issues also handled by the French court, a choice-of-court agreement is needed, pursuant to Article 5(2)(a) of the Matrimonial Property Regime Regulation. As regards applicable law, assuming that the wife is the maintenance creditor, French law will apply to the divorce, as the law of the forum,13 German law to matrimonial property, as the law of their first common habitual residence after the marriage,14 and Spanish law to maintenance, as the law of the habitual residence of the wife.15 Moreover, the reference to the first common habitual residence established ‘shortly after marriage’ seems to imply that a common residence established long after the marriage could not be taken into account. Therefore, the applicable law is that of the Member State of the spouses’ common nationality at the time of the marriage.16 Once again, a dissociation may occur with the law applicable to divorce and maintenance, assuming that the couple at the moment at which the court is seised do not live in the Member State of their nationality. In order to overcome the difficulties of the application of different laws to intertwined issues arising from the same situation, the parties could conclude a choice-of-law agreement as provided in all the instruments at stake.17 The exception clause cannot be considered a solution to this extent. It is true that the exception clause makes it possible to override the connection to the spouses’ first habitual residence in situations

13 Art 8 (c) of the Rome III Regulation. 14 Art 26(1)(a) of the Matrimonial Property Regime Regulation. 15 Art 3 of the 2007 Hague Maintenance Protocol. 16 See P Lagarde, ‘Applicable Law’ in U Bergquist, D Damascelli, R Frimston, P Lagarde and B Reinhartz (eds), The EU Regulations on Matrimonial and Patrimonial Property (Oxford University Press, 2019) 112 f. 17 See C González Beilfuss, ‘The Role of Party Autonomy in Pursuing Coordination’ in Ch 18 of this book.

Coordination Among the Objective Connecting Factors  239 where the spouses changed their common habitual residence during the course of the marriage. However, the application of the exception clause is subject to strict conditions, ie request of one of the parties, durations of the first and last common habitual residence and evidence that both spouses had relied on that law. Moreover, the functioning of such a clause is left to the court, which is given broad discretion.

IV.  Parental Responsibility If the couple in the above example have minor children and the divorce court is requested to also rule on parental responsibility and maintenance in relation to the children, coordination through objective criteria may be achieved with regard to divorce and maintenance. According to Article 15 of the Hague Convention on the Protection of Children, the court corresponding to the place of habitual residence of the child is vested with jurisdiction on parental responsibility under Article 8 of the Brussels IIa Regulation, and it would apply its own law accordingly. Therefore, assuming that the child lives with the parents in Spain, Spanish law will apply to divorce, parental responsibility and maintenance, but not to the property aspects which are subject to German law. Obviously, things are more complicated in the variant of the example where the husband moves to France. The objective choice-of-law rules do not lead to a coordination of the applicable law and parties need to resort to choice-of-law agreements. There are four applicable national laws at stake: German, Czech, Spanish and French. The spouses may choose any of them to regulate both their divorce and their matrimonial property. The chosen law depends on the moment of their choice. With regard to parental responsibility and maintenance of the child the law cannot be chosen.18 For maintenance, however, it is possible to designate the lex fori when proceedings are initiated or about to be initiated.19

V.  Property Aspects of Marriage and Registered Partnerships and Succession As already mentioned, the strong interaction in every legal system between matrimonial property and succession laws justifies the need that the same law governs both of them. Article 21 of the Succession Regulation provides the general and unitary rule that the law applicable to the succession as a whole shall be the law of the Member State in which the de cuius had his habitual residence at the time of death. The use of the last habitual residence as the objective connecting factor is based on the assumption that the deceased was most closely connected to their Member State of residence. However, the application of a closely connected law may not match the expectations of



18 Art 19 Art

8(3) of the 2007 Hague Maintenance Protocol. 7 of the 2007 Hague Maintenance Protocol.

240  Ilaria Viarengo the deceased. This assumption may be overcome through a choice-of-law agreement in favour of another law considered more suitable with the concrete interests of the wouldbe deceased. Article 22 enables testators to choose the law of nationality as the law to govern their succession as a whole. It means that coordination of the law applicable to property aspects of marriage or a registered partnership, by allowing the parties to submit all of these questions to a single law, is (at least partially) possible for the Member States that take part in the enhanced cooperation. However, in the Succession Regulation, the choice is much more restricted than in the Property Regime Regulations. According to Article 22 of the Succession Regulation, the only law that may be chosen by testators to govern their succession is the law of the Member State whose nationality they possessed at the time of making the choice or at the time of death. Therefore, a dissociation with respect to the applicable law cannot be avoided when spouses or partners have different nationalities. The choice of the law of one party’s nationality, the only possibility open to them according to the Succession Regulation, leads inevitably to the application of two different laws for the other spouse or partner. Lacking an agreement, coordination may be difficult to achieve because, once again, there is a divergence with regard to the time at which the applicable law is determined.20 Let us take the example of a Swedish couple, living in Belgium. After some years they move back to Sweden where one of them dies. In this case an agreement is necessary in order to have the same law applied to all issues. Otherwise, the Belgian law, as the law of the first common habitual residence of the couple, would apply to their property regimes,21 and the Swedish law, as the law of the last habitual residence of the de cuius, would apply to the succession.22 Finally, the different solution provided in the Property Regime Regulations and in the Succession Regulation with regard to the renvoi mechanism may also affect the coincidence of the applicable law. Whereas the Property Regime Regulations, as well as Rome III and the Maintenance Regulations exclude any form of renvoi, the Succession Regulation allows the relevance, in specific cases and subject to some conditions, of the conflict-of-law rules of the law governing the succession. Article 34, in fact, takes into account the rules of Private International Law of a third state when such rules refer back to the law of a Member State or when they refer to the law of another third state which would apply its own law. If those conditions are not satisfied, the law first designated by the Succession Regulation applies only in its substantive part. Therefore, a dissociation may occur, for example, in the following situation. A de cuius, habitually resident in a third state since the beginning of his or her marriage, has his or her nationality in a Member State where he or she owns some assets. The Court seised under Article 10(1) of the Succession Regulation should apply the law of the habitual residence, ie the law of the third state where the de cuius was habitually resident at the moment of the death according to Article 21. Assuming that 20 A Bonomi, ‘The Interaction among the Future EU Instruments on Matrimonial Property, Registered Partnerships and Successions’ (2011) 13 YBPrIL 227 ff. 21 Art 26(1)(a) of the Matrimonial Property Regime Regulation. 22 Art 21 of the Succession Regulation.

Coordination Among the Objective Connecting Factors  241 the Private International Law of the third state points back to the law of the nationality of the de cuius, the succession is regulated under the law of the Member State, as a result of the renvoi back provided in Article 34(1)(a). By contrast, matrimonial property is governed by the law of the third state, as the law of the first common habitual residence after the marriage according to Article 26(1)(a) of the Matrimonial Property Regimes Regulation.

VI.  Assessment of the Case Law The case law collected in the EUFam’s database shows the difficulties for the courts to correctly apply the relevant Regulations with regard to jurisdiction as well as applicable law. The fragmentation of the legislation of the European Union on family matters is an issue in practice. As a matter of fact, correctly combining the provisions set out in the different EU instruments is rather complex. Sometimes the courts do not examine their international jurisdiction at all and immediately revert to the national conflict-of-laws rules. More often, they examine their international jurisdiction, but do not apply all the relevant Regulations. In other words, courts do not always examine their international jurisdiction with regard to all aspects of the case. They correctly apply the Brussels IIa Regulation with regard to divorce and then they (wrongly) extend their jurisdiction to the related maintenance and parental responsibility issues, without even examining the possibility of applying the Maintenance Regulation or Article 8 of the Brussels IIa Regulation.23 With regard to applicable law, first, it often occurs that maintenance as well as parental responsibility issues are regulated as if they were ‘de-facto issues’, without any reference to the relevant Regulations. The courts, after having established their jurisdiction on the basis of the Brussels IIa Regulation and the Maintenance Regulation, rule on the merit, applying their own law.24 Second, other judgments apply national conflict-of-laws rules to situations falling into the temporal scope of the supranational uniform rules.25 Last, some Spanish and Italian courts rightfully apply Rome III Regulation rules (or the national 23 Audiencia Provincial Barcelona, 18 July 2013 No 551/2013, ESS20130718; Audiencia Provincial Barcelona, 17 November 2015 No 828/2015, ESS20151117. 24 Trib Milano, 11 June 2012, IT20120611; Trib Milano, 23 July 2012, IT20120723; Trib Milano, 14 February 2013, IT20130214; Audiencia Provincial Barcelona, 19 July 2013 No 57172013, ESS20130719; Audiencia Provincial Barcelona, 4 February 2015 No 53/2015, ESS20150204; Audiencia Provincial Barcelona, 20 October 2015 No 661/2015, ESS20151020; KS v Českých Budějovicích, 5 April 2011, Co 781/2011, CZS20110405; Cour d’appel de Lyon, 27 June 2011 No 10/05170, FRS20110627a; OS Lučenec, 21 November 2013, 17P/171/2012, SKF20131121; OS Dunajská Streda, 4 March 2014, 9P/88/2013, SKF20140304; KS v Brně, 3 October 2014, 14 Co 70/2014, CZS20141003; KS Žilina, 21 May 2015, 5CoP/37/2012, SKS20150521; Općinski sud u Splitu, 22 December 2015, Pob – 341/14, CRF20151222; Općinski sud u Požegi, 11 March 2016, P-Ob-28/15-12; CRF20160311; Općinski sud u Sisku, 18 March 2016, P-Ob-578/15, CRF20160318. 25 This happened in only two cases decided by the same Court on the same day: Trib Pavia, 20 August 2015, ITF20150820a; Trib Pavia, 20 August 2015, ITF20150820b. In both judgments, the Court applied Italian law ex-Art 31(1) of Italian Law No 218/1995 as the law of the country in which the matrimonial life was mainly located. However, given the similar nature of that connecting factor and the spouses’ habitual residence (recalled in Arts 8(a) and 8(b) of Rome III Regulation) and considering that in both cases the spouses had different nationalities, Italian law would have been applied as well, even if the Courts had made due reference to the Rome III Regulation.

242  Ilaria Viarengo PIL rules, if the situation falls outside the temporal scope of said Regulation) in order to determine the law applicable to legal separation and divorce; the law thus found also regulates other claims (mainly maintenance ones) without any further consideration of specific conflict of laws issues.26 Fortunately, there are some examples of good practice as well.27

26 See, among many, Trib Belluno, 30 December 2011, ITF20111230; Trib Roma, 14 June 2013, ITF20130614; Trib Roma, 25 October 2013, ITF20131025a; Trib Roma, 25 October 2013, ITF20131025b; Trib Roma, 27 August 2014, ITF20140827; Audiencia Provincial Barcelona, 4 February 2015 No 53/2015, ESS20150204; Trib Pordenone, 10 June 2015, ITF20150610; Audiencia Provincial Barcelona, 23 July 2015 No 549/2015, ESS20150723; Audiencia Provincial Vizcaya, 24 February 2016 No 117/2016, ESS20160224. 27 For a correct and precise coordination among several legal sources (EU instruments and national law) see: Trib Roma, 6 November 2013, ITF20131106; Audiencia Provincial Barcelona, 30 October 2014 No 665/2014, ESS20141030; Audiencia Provincial Barcelona, 11 December 2014 No 773/2014, ESS20141211; Trib Belluno, 23 December 2014, ITF20141223; Audiencia Provincial Barcelona, 8 January 2015 No 10/2015, ESS20150108; Trib Roma, 2 July 2015, ITF20150702; Trib Roma, 2 October 2015, ITF20151002; Trib Belluno, 24 May 2016, ITF20160524.

18 The Role of Party Autonomy in Pursuing Coordination CRISTINA GONZÁLEZ BEILFUSS

I. Introduction One of the most salient features of European Union family law instruments is that they recognise party autonomy, ie, parties are permitted to conclude agreements designating the applicable law. Viewed from another perspective, this means that parties are free to derogate from the law that would apply on objective grounds, including its mandatory provisions, if they validly conclude a choice-of-law contract. EU Private International Law has progressed step by step, through the enactment of singular pieces of legislation. These Regulations do not always work well together.1 Since the main rule in choice of law is party autonomy, it makes sense to pose the question as to whether coordination can be achieved by the parties themselves using party autonomy. In the context of choice of law, where the function of legal rules is to establish the law that governs a given relationship, coordination can mean that different aspects of a legal dispute are subject to the same legal system. Coordination is desirable from a Private International Law perspective because it prevents characterisation and adaptation difficulties. If matrimonial property and maintenance claims are governed by the same substantive law, it does, in practice, not matter very much whether a particular financial relief claim falls under one or the other

1 On the need for coherence in European family law see A Bonomi, ‘The Interaction Among the Future EU Instruments on Matrimonial Property, Registered Partnerships and Successions’ (2011) 13 YBPrIL, 217–31; B Campuzano Diaz, ‘The Coordination of the EU Regulations on Divorce and Legal Separation with the Proposal on Matrimonial Property’ (2011) 13 YBPrIL 233–53; P Quinza Redondo and J Gray ‘La (des)coordinación entre la Propuesta de Reglamento de régimen económico matrimonial y los Reglamentos en materia de divorcio y sucesiones’ (2013) 13 Anuario español de derecho internacional privado 513–42; EB Crawford and JM Carruthers, ‘Connection and Coherence Between and Among European Instruments in the Private International Law of Obligations’ (2014) 63 ICLQ 1–29; J Von Hein and G Rühl, ‘Towards a European Code of Private international Law?’ (2015) 79 RabelsZ 701–51; FM Wilke, ‘Introduction’ in S Leible (ed), General Principles of European Private International Law (Aalphen aan den Rijn, Kluwer Law International, 2016) 1–2.

244  Cristina González Beilfuss choice-of-law rule.2 Since at substantive law level matrimonial property and maintenance obligations between former spouses are attuned to each other, the fact that both matters are governed by the same substantive law avoids incoherent results that would require an adjustment by the competent authority.3 It is also unquestionable that dispute resolution is easier and, therefore, cheaper and quicker if the competent authority does not have to combine the application of substantive rules pertaining to different legal systems.

II.  The Party Autonomy Rule in European Family Law All applicable law instruments adopted in European family law introduce party autonomy as the main choice-of-law provision. Objective choice-of-law rules only apply in default. Article 5(1) of the Rome III Regulation establishes that spouses may choose the law applicable to their divorce or legal separation from the following: the law of the state where the spouses are habitually resident; the law of the state where the spouses were last habitually resident, in so far as one of them still resides there; the law of the state of nationality of either spouse; or the law of the forum. Choice-of-law contracts can be concluded at any time until the court is seised (Article 5(2)); whether they are possible during proceedings depends on the law of the forum (Article 5(3)). Rome III only regulates the dissolution or loosening of matrimonial ties.4 Usually, a divorce or separation carries with it consequences in the areas of maintenance and matrimonial property. These matters are dealt with in other EU instruments. The Maintenance Regulation does not directly include applicable law provisions, but refers in Article 15 to the 2007 Hague Maintenance Protocol.5 The 2007 Hague Maintenance Protocol was ratified by the European Union and is binding in all European Union Member States, except Denmark and the United Kingdom.6 The 2007 Hague Maintenance Protocol also permits party autonomy. The 2007 Hague Maintenance Protocol draws a distinction between choice-oflaw agreements made for a particular proceeding (Article 7), and other agreements (Article 8). Choice-of-law agreements falling under Article 7 only produce effects in connection to the particular proceeding, in the wake of which the agreement is made. This implies that the dispute has already arisen between the parties and that proceedings 2 On characterisation issues in family law, in general, see L Tomasi, C Ricci and S Bariatti, ‘Characterization in Family Matters for Purposes of European Private International Law’ in J Meeusen, G Straetmans, M Pertegas and F Swennen (eds), International Family Law for the European Union (Antwerp, Intersentia, 2007) 341–88. In the area of financial relief, see CI Nagy, ‘Love and Money: Problems of Characterization in Matrimonial Property and Maintenance Matters in the EU’ in P Beaumont, B Hess, L Walker and S Spancken (eds), The Recovery of Maintenance in the EU and Worldwide (Oxford, Hart Publishing, 2014) 411–23. 3 See G Dannemann, ‘Adjustment/adaptation (Anpassung)’ in J Basedow, G Rühl, F Ferrari and P De Miguel Asensio (eds), Encyclopedia of Private International Law (Cheltenham, Edward Elgar, 2017) 8–12. 4 See Recital 10 of the Rome III Regulation. 5 The text of the 2007 Hague Maintenance Protocol and its Explanatory Report by A Bonomi can also be found at www.hcch.nl. 6 See declaration made by the European Union upon ratification of the 2007 Hague Maintenance Protocol. It can be consulted at www.hcch.nl.

The Role of Party Autonomy in Pursuing Coordination  245 have already or are about to be initiated. The only law that can be chosen is the law of the forum. This provision, therefore, corresponds to the accord procedural known in French Private International Law.7 Article 8 of the 2007 Hague Maintenance Protocol deals with choice-of-law agreements in broader terms. Paragraph 1 thereof establishes that the maintenance creditor and debtor may at any time conclude a choice-of-law agreement for situations that might arise in the future. They can designate the law applicable to a maintenance obligation to be: the law of any state of which either party is a national; the law of the state of the habitual residence of either party; the law applicable to their property regime; or the law applicable to divorce or legal separation. Such agreements on the applicable law are not possible in connection to maintenance obligations in respect of a person under the age of 18 years or of an adult who, due to an impairment or insufficiency of his or her personal faculties, is not able to protect his or her interests (Article 8(3)). The Matrimonial Property Regimes Regulation, which became applicable on 29 January 2019,8 also provides in Article 22 that the spouses or future spouses may agree to designate the law applicable to their matrimonial property regime. However, this law must be either: the law of the state where the spouses or future spouses, or one of them, is habitually resident; or the law of a state of nationality of either spouse or future spouse. The Regulation on the Property Consequences of Registered Partnerships contains a parallel provision in connection to the property effects of registered partnership. Initially, when the European Commission presented its proposal, partners were not allowed to choose the applicable law. This was changed during the negotiations because a difference in treatment was deemed to be incompatible with the Charter of Fundamental Rights.9 Partners, like spouses, may agree to designate the law applicable to their property relationships, if such law is the law of the state of the habitual residence or nationality of one of them at the time the agreement is made. Partners can also select the law of the state under whose law the registered partnership was created. The choice of registered partners is further restricted in so far as they can only choose a legal system that attaches property consequences to the institution of registered partnership. The legal system 7 Where parties have the free disposition of their rights they also have the power to agree on the application of the law of the forum during the legal proceedings. The choice may be an implied choice. See G Cuniberti, ‘France’ in J Basedow, G Rühl, F Ferrari and P De Miguel Asensio (eds), Encyclopedia of Private International Law (Cheltenham, Edward Elgar, 2017) 2083. 8 See Matrimonial Property Regimes Regulation, Art 70(2). 9 The report by the Committee on Legal Affairs of the European Parliament presented on 20 August 2013 expressed misgivings as to whether such a difference in treatment was reconcilable with the principle of equality before the law under Art 20 of the Charter of Fundamental Rights of the Union and the principle of non-discrimination under Art 21 of the same. See Report on the proposal for a Council regulation on jurisdiction, applicable law and the recognition and enforcement of decisions regarding the property consequences of registered partnerships (COM(2011)0127 – C7-0094/2011 – 2011/0060(CNS)), Committee on Legal Affairs, Rapporteur: Alexandra Thein (A7-0254/2013). The European Agency for Fundamental Rights was then requested to issue an opinion. The Agency concluded that the specific role of the EU legislator with regards to objectives such as the promotion of free movement and the fundamental rights of citizens would seem to call for an approach that provides more, rather than less, flexibility when it comes to the choice of law. See FRA Opinion – 1/2012 – Property consequences of registered partnerships.

246  Cristina González Beilfuss chosen must, therefore, comply with two requirements. The legal system must contain the institution of registered partnership and establish property consequences for such an institution.10

III.  The Justification of Party Autonomy Before examining whether the party autonomy rule contributes to coordination, it is worthwhile to inquire about the theoretical justification for the party autonomy rule in EU International Family Law. The rationale of a legal rule is its intellectual backbone11 and provides internal logic and coherence. If the pursuit of coordination were determined to be part of the rationale of the party autonomy rule, any deficits of coordination would be essential shortcomings. If, on the contrary, the party autonomy rule was justified by other considerations, coordination deficits would be less grievous. Uncovering the justification for the party autonomy rule in International Family Law would require an in-depth examination that is not feasible in this context. It is, however, possible to examine the reasons given by the law maker in the Recitals of the Regulations or the Explanatory Report to the 2007 Hague Maintenance Protocol, in order to try to ascertain why the European legislator decided to turn party autonomy into the primary choice-of-law rule in International Family Law. Recital 15 of the Preamble to the Rome III Regulation justifies the introduction of party autonomy by connecting the concepts of flexibility and legal certainty to an increased mobility of European couples. This explanation lacks clarity, essentially because all these concepts are buzz words that appear, again and again, in Preambles and court decisions and seem to serve multiple purposes. The ultimate reason for flexibility and legal certainty is obscure, namely whether such flexibility and legal certainty are pursued for the benefit of a sound administration of justice, ie, to facilitate dispute resolution by the competent authority, or whether they serve the interests of families. The rationale of the party autonomy rule is further revealed in the Bonomi report to the 2007 Hague Maintenance Protocol. The report states that party autonomy secures a measure of stability and foreseeability.12 This suggests that party autonomy is established, essentially, in the interest of individuals, who need a legal framework that allows them to anticipate the applicable law. This interpretation is confirmed by Recitals 45 and 44 of, respectively, the Matrimonial Property and Regulation on the Property Consequences of Registered Partnerships that very clearly state that party autonomy has been introduced to facilitate the management of property by spouses or partners. 10 See C González Beilfuss, ‘The Proposals on Council Regulations in Matters of Matrimonial Property Regimes and on the Property Consequences of Registered Partnerships: Interactions between Private International Law and Substantive Law’ in E Lauroba Lacasa and E Ginebra Molins (eds), Régimes matrimoniaux de participation aux acquets et autres mécanismes participatifs entre époux en Europe (Paris, Societé de legislation compare, 2016) 171–87. 11 JJ Jacquet, ‘La theorie de l’autonomie de la volonté’ in S Corneloup and N Joubert (eds), Le Règlement communautaire Rome I et le choix de loi dans les contrats internationaux (Paris, LexisNexis, Litec, 2011) 1. 12 A Bonomi, ‘Explanatory Report on the Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations’ (The Hague, Permanent Bureau of the Conference, 2013) 54, 55.

The Role of Party Autonomy in Pursuing Coordination  247 Party autonomy is, therefore, not introduced because it contributes to a sound administration of justice, even though this is a welcome side effect. Instead, party autonomy is introduced because it is a tool that facilitates the lives of citizens. How does this work? Families bargain in the shadow of the law. They negotiate rules or solutions that work for them in the expectation that should things go wrong, they would be able to turn to the law for a response to their queries. They take decisions that are supposed to work in the framework of a given legal system. In 1979, Mnookin and Kornhauser published a ground breaking article on the influence of law on the bargaining behaviour of divorcing couples. They showed that spouses bargain in the shadow of the law. The law projects itself into the bargaining process in several ways. Background legal rules give parties certain claims or entitlements based on what they would get if the case went to trial.13 Part of the negotiation process is centred on norms, with the parties or, more accurately their counsel, referring to legal provisions and case law.14 The deal that is eventually negotiated is also evaluated by reference to the yardstick of the decision that would most likely be made should negotiations fail.15 If one follows this line of reasoning, the role of party autonomy seems obvious. Party autonomy provides one type of certainty that is missing in the international context,16 namely the certainty of a stable framework of legal rules that parties can fall back on, when they want to make plans or solve disputes. Party autonomy allows families to know where they stand, legally speaking. It functions as a conflictual tool for private ordering. At a later stage, a choice-of-law contract facilitates the validation or homologation of agreements by the competent authority because such validation or homologation may imply a scrutiny of the agreement or decision by reference to a legal system. Whether such validation is required for the deal to be binding also results from the law that governs and is crucial if parties do not comply with the agreement voluntarily and enforcement must be sought. In the afterlife of agreements or decisions, the applicable law also matters. Agreements and decisions will be interpreted according to the law that governs. If one of the parties wishes to walk away from the agreement, he or she might seek to invalidate it. For example, whether this is possible under a hardship clause or under rebus sic stantibus, will depend on the applicable law. If circumstances change and agreements need to be updated, the law will also provide guidelines that facilitate the exercise. Party autonomy is also reasonable when parties refer their dispute to a competent authority. In such a circumstance, while there is disagreement on substance, parties could still have a common interest in an agreement on the applicable law. This would free the competent authority from the arduous task of ascertaining the law that governs and allow the proceedings to focus on the contentious matter.

13 RH Mnookin and L Kornhauser, ‘Bargaining in the Shadow of the Law: The Case of Divorce’ (1979) 88 YaleLJ 950, 968–69. 14 The other part is bluff and threat, ie is a relatively norm-free process. See Mnookin and Kornhauser (n 13) 973. 15 ibid. 16 See J Basedow, The Law of Open Societies. Private Ordering and Public Regulation in the Conflict of Laws (The Hague, Brill, 2015) 14.

248  Cristina González Beilfuss Party autonomy is also necessary in the context of a PIL system that has embraced habitual residence as the main objective connecting factor. Habitual residence is valued for its flexibility, which allows fine tuning of the location of the law that governs. But, it comes at a price: unpredictability and instability. There are factual constellations where there can be different views about the habitual residence of a family. If a European couple moves to a remote country because the husband is working for a firm that sent him there, it may be argued that they establish a habitual residence there. Physical presence is certainly one factor to be considered. But intention also counts.17 A court may, therefore, decide that the family is not habitually resident where they live. But, it may also decide the contrary. If a family changes its dwelling place frequently, the possible changes of habitual residence may imply changes of the applicable law. Private ordering becomes extremely difficult in these circumstances. Party autonomy avoids the risks associated with the use of habitual residence as an objective connecting factor. It can be used to anchor the regulation of family life in the chosen legal system, be it the law of nationality or the law of habitual residence at the time of designation. Party autonomy requires, however, parties to be active. Party autonomy presupposes two things. First, families must know that it is available. Second, families must decide that it is advantageous in their case. This second step is driven by motives that are particular to each family. In the context of this chapter, it is not possible to analyse the possible motives for activating party autonomy. The question that is posed here is confined to coordination. Is the pursuit of coordination a major motivation for activating party autonomy? In my view, coordination is only a motivation to a limited and subordinate extent. Coordination is an important consideration for the authority that will eventually be called upon to intervene, mostly because it facilitates the work of the authority. Law makers also have an interest in coordination because of its impact on case management from the point of view of efficiency. But from the viewpoint of law enforcement and law makers, party autonomy is not the most significant tool that can be used to achieve coordination, essentially because the parties must choose to use the rule. The coordination of objective jurisdiction and choice-of-law provisions would be more straightforward.18 Coordination is, however, relevant to the parties. It is an element of the planning exercise that justifies party autonomy from the perspective of private actors. Party autonomy is a conflictual tool for private ordering that can be used before or after dispute has arisen or in the context of estate planning. In both circumstances, the approach by parties is holistic. Parties, or more accurately their legal counsel, are interested in the big picture, the transaction as a whole rather than only part of it. They will, for example, view divorce as one bargain dissolving the marital unit. In negotiations, concessions by one party in connection to one matter are likely to be balanced up by concessions of the other party in relation to another matter. 17 See MP Weller and B Rentsch, ‘Habitual Residence: A Plea for “Settled Intention”’ in S Leible (ed), General Principles of European Private International Law (Aalphen aan den Rijn, Kluwer Law International, 2016) 171–87. 18 If the sound administration of justice were the primary consideration it would even make sense to advocate for the application of the lex fori.

The Role of Party Autonomy in Pursuing Coordination  249 If spouses have reached the point where they both accept that the marriage will dissolve, they will want it to be quick and painless. Keeping costs reduced is desirable and necessary, and coordination can significantly reduce them. Since money spent on lawyers and courts is money that a family cannot enjoy or distribute, it will always be part of the transaction planning exercise and play a role in the prevention or resolution of disputes. We should, however, not lose sight that coordination, per se, is not what matters to parties. If the result is worthwhile, they may indeed decide to bear the disadvantages of fragmentation. These disadvantages are essentially also a matter of costs that will be evaluated in relation to benefit and in accordance with the parties’ financial resources.19 The approach of parties to party autonomy and coordination is driven by interest, available financial resources and results.

IV.  Coordination through the Exercise of Party Autonomy: The Test Case In order to determine whether party autonomy could be exercised to achieve coordination, it is useful to look particularly into its role in a divorce scenario. The dissolution of a marriage entails several consequences that are each governed by different European Union instruments. What would happen if Giacomo of Italian nationality and Carmen of Spanish nationality, a married couple residing in Belgium, would after 12 years of marriage wish to divorce? According to Article 5(1) of the Rome III Regulation, they would be able to designate either Belgian (the law of their common habitual residence), Spanish (the law of the wife’s nationality) or Italian law (corresponding to the husband’s nationality). If they decided to select Spanish law, which is at present very divorce friendly, to govern their divorce, they could designate it as the law applicable to any maintenance claims between them in accordance with Article 8(1) 2007 Hague Maintenance Protocol, because the law applicable to divorce is among those that can be chosen. Under the Matrimonial Property Regimes Regulation, Giacomo and Carmen are also be able to establish Spanish law as the law governing their matrimonial property regime. However, their choice would not have retroactive effects, unless they so decided, and would be without prejudice to third parties (Article 22(3)). If the choice of the applicable law had no retroactive effect, the liquidation and distribution of property acquired during the marriage could be governed by different substantive laws corresponding to different time periods. Coordination difficulties could occur if one period were governed, for example, by Belgian law and the other by Spanish law.20 19 On the issue of class in relation to family law, stating that ‘at times it appears there are two family laws – one for people with resources and one for people without them’, see KK Baker and KB Silbaugh, Family Law: The Essentials (New York, Aspen Publishers, 2009) 19–21. 20 See I Viarengo, ‘The EU Proposal on Matrimonial Property Regimes. Some General Remarks’ (2011) 13 YBPrIL 214–15.

250  Cristina González Beilfuss Coordination works better if the law applicable to divorce, maintenance and matrimonial property is chosen in a prenuptial agreement. If a mixed Italian–Spanish couple married after the Matrimonial Property Regimes Regulation came into effect,21 they could conclude an agreement for divorce in which they could select Spanish, Italian or the law of their habitual residence at the time of agreement; the chosen law would apply to divorce, maintenance and matrimonial property. This would, however, require that the content of the chosen law leads to a preferred outcome in the three matters. In practice, however, such agreements do not suit everybody’s taste. There is very limited empirical research available. It seems, however, that very few individuals sign pre-marital contracts.22 Research indicates that couples underestimate the benefits of signing such agreements, first because they fail to understand how such agreements might assist in the event of a divorce and, second, because of optimism bias. People do not enter relationships with any prior knowledge of legal rules applying to them and therefore do not see the value of derogating from these rules.23 Even when statistics indicate that 50 per cent of marriages end up in divorce, individuals rate at only 11 per cent the likelihood of their marriage failing. Human beings seem to be, by nature, over optimistic, and believe themselves immune from risks. An early death or serious illness of a partner is not contemplated either.24 A further explanation for the scarcity of prenuptial agreements is that partners that do understand the value of an agreement might still not want to request one for fear of showing distrust in the success of the marriage.25 Requesting the conclusion of a legally binding agreement for the event of a future divorce and bargaining over its terms does not square well with romance and notions of ‘living happily ever after’. Do these findings also apply to party autonomy? It can only be guessed. But the value of selecting the applicable law might well escape ordinary family lawyers, not to mention parties. And because selecting the applicable law signals that parties contemplate the need to resort to the law, there is a connection between the choice-of-law agreement and distrust and thoughts about failure.

V.  Limitations to Coordination There are further limitations of party autonomy in pursuing coordination that become apparent upon further reflection. First, there are subject matters where party autonomy is not available. Second, there is the risk that the choices made will not be respected if disputes or issues arise in jurisdictions of states not recognising party autonomy in family law.

21 At present, such a choice of the applicable law might be available under national Private International Law provisions. It is, for example, possible under Art 9(2) of the Spanish civil code. 22 H Mahar, ‘Why Are There So Few Pre-Nuptial Agreements?’ Discussion Paper No. 436, 2003, Harvard John M. Olin Discussion Paper Series at www.law.harvard.edu/programs/olin_center/. 23 ibid 7–8. 24 ibid 9. 25 ibid 11.

The Role of Party Autonomy in Pursuing Coordination  251

A.  Parental Responsibility The first important limitation appears if Giacomo and Carmen have minor children and the divorce court is requested to also rule on parental responsibility and on maintenance in relation to the children. Difficulties might also arise if parental responsibility is decided in a special proceeding, but here the need for coordination is less apparent. The law applicable to parental responsibility is determined in accordance with the 1996 Hague Convention on the Protection of Children. Under this instrument, Giacomo and Carmen would not have the option to select the law governing parental responsibility. The law governing maintenance towards minor children cannot be chosen either (Article 8 2007 Hague Maintenance Protocol), except when proceedings are initiated or about to being initiated, when it would be possible to designate the lex fori (Article 7). This analysis is, however, incomplete in so far as it does not consider the impact of jurisdiction rules in combination with the choice-of-law provision on parental responsibility. Under Article 8 of the Brussels IIa Regulation, jurisdiction on parental responsibility is primarily vested in the court corresponding to the place of habitual residence of the child. This court would apply its own law in accordance with Article 15 1996 Hague Convention on the Protection of Children. If Giacomo and Carmen wanted to select Belgian law as the law applicable to their divorce, maintenance and matrimonial property regime they would achieve coordination through the application of the objective choice-of-law provision on parental responsibility if they brought the case to Belgium. Parental responsibility would be governed by Belgian law in accordance with the lex auctoritas rule. Under Article 7 of the 2007 Hague Maintenance Protocol they would also be able to select the law of the forum as the law applying to maintenance. Party autonomy would, however, hardly be of any added value in such case, because Belgian law would probably apply to divorce, maintenance and matrimonial property already under the objective choice-of-law rules.26 Parties are unlikely to resort to the party autonomy rule if the wanted result is already provided by default rules. This is one of the paradoxes of party autonomy. Even when it is the primary choice-of-law provision, in practice, it works as the default rule. If parties can already reach their goals under the objective choice-of-law provisions that apply in default of an agreement, why bear the costs of entering into an agreement? However, Carmen and Giacomo have other possibilities if they wish to select Spanish law to apply to divorce, maintenance and matrimonial property and submit parental responsibility and maintenance for their minor children to Spanish law. They might take advantage of the rules of prorogation of jurisdiction in parental responsibility

26 If Carmen and Giacomo have their habitual residence in Belgium, Belgian law corresponds to the law of the state where the spouses are habitually resident at the time the court is seised (Art 8(a) Rome III). Belgian law is also the law of the habitual residence of the maintenance creditor (Art 3(1) 2007 Hague Maintenance Protocol). Matrimonial property is also governed by the law of the spouses’ common habitual residence, but Art 26(a) of the Matrimonial Property Regimes Regulation provides that it is the first habitual residence after the conclusion of the marriage which matters. If Giacomo and Carmen had had a prior habitual residence before settling in Belgium, the law corresponding to that would apply, unless they chose Belgian law at a later stage. This choice, however, may not have retroactive effect and causes the difficulties analysed before.

252  Cristina González Beilfuss matters.27 According to Article 12(1) Brussels IIa Regulation, spouses can enter into a choice-of-court agreement and attribute jurisdiction on parental responsibility to the divorce court. Prorogation is subject to three28 conditions: (a) at least one of the spouses has parental responsibility in relation to the child; (b) the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner by the spouses and by the holders of parental responsibility; and (c) it is in the best interest of the child. The chosen court will then apply its own law in accordance with Article 15 of the 1996 Hague Convention on the Protection of Children.29 Under Article 7 of the 2007 Hague Maintenance Protocol, they would be able to select Spanish law as the law applicable to maintenance obligations towards their children. The crucial thing is, therefore, whether Giacomo and Carmen can select the divorce court. In principle, the Regulation does not provide for choice of court in matrimonial matters. But if they divorce by agreement, like most spouses, they have a limited choice between seven alternative fora. The Regulation leaves some room for manoeuvring. If spouses have different nationalities, like in our test case, they would have to divorce in Belgium, unless one or both had left Belgium.30 If Carmen had returned to Spain, her state of origin, and had been habitually resident there for six months, while Giacomo had stayed in Belgium, both Belgian and Spanish courts would have jurisdiction. Even if the children were habitually resident in Belgium, the Spanish divorce court would be able to hear the parental responsibility case, if prorogation under the conditions of Article 12(1) had been accepted. Spanish law would have been indirectly chosen to govern parental responsibility by virtue of Article 15 of the 1996 Hague Convention on the Protection of Children, provided that the spouses agreed to divorce by mutual consent in Spain. The competent authority would probably be alleviated if it did not have to apply rules of different legal systems. From the viewpoint of Giacomo and Carmen, it might not be all that important. Article 15 of the 1996 Hague Convention on the Protection of Children guarantees that if the matter is brought to a court in an EU Member State, the law applicable will be European. In content, European legal systems do not show marked 27 C González Beilfuss, ‘Prorogation of Jurisdiction’ in C Honorati (ed), Jurisdiction in Matrimonial Matters, Parental Responsibility and Abduction Proceedings. A Handbook on the Application of Brussels II a Regulations in National Courts, (Torino, Giappiccheli/Peter Lang, 2017) 171–83. 28 This view is not shared by AG Tanchev who considers that ‘the criterion of the “best interests of the child” is not an independent element but gives the judge the power and duty to correct the application of Article 12(3)(b) in atypical cases’. See Opinion of Advocate General Tanchev in Case C-565/16 Alessandro Saponaro and Kalliopi-Chloi Xylina [2017] ECLI:EU:C:2017:942. 29 Art 15 of the Hague Convention is stated to apply when Contracting States assume jurisdiction under Chapter II of the Convention. It should however be read in a purposive way and applied also when jurisdiction is based on Regulation Brussels IIa. See N Lowe and M Nicholls, The 1996 Hague Convention on the Protection of Children (Bristol, Jordan Publishing, 2012) 58. 30 See Art 3 Brussels IIa Regulation. Paragraph (a) provides that jurisdiction is vested in the courts in whose territory the spouses are habitually resident; or the spouses were last habitually resident, insofar as one of them still resides there; or the respondent is habitually resident; or, in the event of a joint application, either of the spouses is habitually resident; or the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made; or the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is either a national of the Member State in question; or, in the case of the United Kingdom and Ireland, has his or her ‘domicile’ there. Paragraph (b) also attributes jurisdiction to the courts corresponding to the nationality of both spouses or, in the case of the United Kingdom and Ireland, of the ‘domicile’ of both spouses.

The Role of Party Autonomy in Pursuing Coordination  253 differences in respect of parental responsibility. The legal systems share common legal principles through the influence of international human rights and child protection instruments.31 Commonality may be seen in non-contentious cases, because the exercise of parental responsibility can be decided by agreement of parental responsibility holders in virtually all European legal systems.32 Even though such agreements are very often subject to scrutiny and validation by the competent authority, in practice they are rubber-stamped, unless seriously detrimental.33 Therefore, law shopping about parental responsibility might not be a real issue for the parties.34

B.  Limited Effectiveness of Choice-of-Law Agreements in Family Matters Unlike in contract law, where it is widely accepted, party autonomy is not a general principle of International Family Law. Thus, there is no guarantee that the choices made will be respected when parties seek to enforce them. The choice of Spanish law made by Carmen and Giacomo may not be respected if their divorce claim is filed with a court not recognising the party autonomy rule. If the case was finally heard by a court of a state outside the EU or even by the court of a Member State not bound by Rome III and the Matrimonial Property Regimes Regulations, which were both adopted under enhanced cooperation, Spanish law might not be applied. It is very likely that they would end up with Belgian law or the law of the forum, instead. It could, therefore, be argued that a major shortcoming of the European Private International Law system lies in the rules of international jurisdiction. Under Brussels IIa, spouses do not have the power to designate the divorce court and ensure that their choices on the applicable law will be respected. Much would, therefore, be gained if the Brussels IIa Regulation were amended to provide for a rule on prorogation of jurisdiction in matrimonial matters. Its absence is, furthermore, unjustified in view of the wide rule on prorogation in parental responsibility matters contained in Article 12(3) Brussels IIa.35 However, what is very often overlooked in the analysis is that most divorces filed are mutual consent divorces. This surely has an impact on the decision where to file divorce, which can be assumed to be a joint decision. If Giacomo had left Carmen and settled in a Member State not bound by Rome III and the Matrimonial Property Regimes Regulation, and the couple agreed to divorce, they could choose to file the divorce petition in Belgium (the state of former common habitual residence), provided that Carmen

31 See K Boele-Woelki, F Ferrand, C González Beilfuss, M Jänterä-Jareborg, N Lowe and W Pintens, Principles of European Family Law Regarding Parental Responsibilities (Antwerp, Intersentia, 2007) 13–24. 32 ibid 91–92. 33 B Bix, ‘Private Ordering and Family Law’ (2010) 23 AAML 262. 34 Forum shopping might be much more decisive, but is not dealt with in this chapter. 35 Art 12(3) permits parties to select any court, if it has a connection to the case.

254  Cristina González Beilfuss had stayed in Belgium. The designation of Spanish law as the law applying to divorce, matrimonial property and maintenance would thus be safeguarded. There are, however, other cases in which spouses would not have access to a court in a Member State respecting party autonomy. If they had both settled in a third state and the marriage had irretrievably broken down there, they would not have access to Spanish, Italian, or Belgian courts, unless one of them decided to move back. Whether this would matter to them, if they wanted to divorce by mutual consent, is another story. It would depend on the content of the applicable law. If this were the law of a country with a restrictive divorce policy, they might be trapped in a marriage they both no longer wanted, despite all precautions taken in agreements on the applicable law. What Brussels IIa does not foresee is a prorogation agreement concluded when divorce is a mere hypothesis. Spouses are free to choose the law applicable to their divorce, to maintenance claims and matrimonial property at any time, even when celebrating the marriage. But at that moment they are not able to select the competent authority. Consequently, they would be at the mercy of each other, if they finally decided to divorce despite any agreements made. Let us suppose that Giacomo had moved to the United Kingdom, a state not bound by Rome III, the 2007 Hague Maintenance Protocol or the Matrimonial Property Regimes Regulation, while Carmen had stayed in Belgium. In the scenario of a contentious divorce, Giacomo and even Carmen might be able to deactivate any agreements concluded on the applicable law by filing the lawsuit in the United Kingdom. Giacomo might have access to British courts on grounds of having had his habitual residence there for more than a year, and Carmen would be able to file the law suit in the United Kingdom on grounds that it is the defendant’s habitual residence. There are many voices calling for allowing party autonomy in connection to jurisdiction in matrimonial matters.36 As we have seen, spouses already have some room for it, if they decide to divorce by mutual agreement, provided that they are habitually resident in different states. The real question, therefore, is whether they should be allowed to select the competent authority before a dispute arises, and thus choose the court respecting their agreements on the applicable law. A prorogation rule that would allow them to designate the competent authority for a future divorce might, in my view, be incompatible with fundamental rights if it bound one spouse to file divorce in one jurisdiction that might later become difficult to access, ie, if the chosen court had exclusive jurisdiction. Imagine that Giacomo and Carmen had decided on the Belgian courts, that they had gone to another country and that Giacomo wanted a divorce that Carmen contested. In such a circumstance, Giacomo might find insurmountable obstacles and, in practice, perhaps be unable to divorce. Such a result would, in my opinion, not be compatible with the right to a fair trial that comprises the right of access to a court. It would also have a negative impact

36 See A Borras, ‘Grounds of Jurisdiction in Matrimonial Matters: Recasting the Brussels IIa Regulation’ (2015) NedIPR, 5–6; T Kruger and L Samyn, ‘Brussels II bis: Successes and Suggested Improvements’ (2016) 12 JPIL 144–45.

The Role of Party Autonomy in Pursuing Coordination  255 on self-determination rights that have led to the recognition of a right to divorce in jurisdictions like Sweden.37 A jurisdiction clause could, if upheld by the court, perhaps function as a Ulysses clause. This is a concept coined by behavioural economists and is named after the hero of the Odyssey. When Ulysses comes across the sirens, he requests to be tied to the vessel’s mast and not to be untied, no matter how desperately he begs. A Ulysses contract functions as a deal between your present self and the future self, binding the future self not to do something. By agreeing to have future disputes settled in a specific country, Giacomo and Carmen might be, in fact, erecting ‘a huge logistical and financial barrier to the winner- takes-all forum of courtroom battle’.38 A Ulysses clause would push spouses into solving their dispute by agreement. In the case of married couples, dissolution is decreed by a competent authority. The logistical and financial barrier might therefore, depending on circumstances, impede spouses from ending a relationship they both no longer want. Reducing the available fora might, in the end, incentivise the parties to use the so-called ‘poor man’s divorce’, namely that Giacomo just walks away from the relationship. This is not uncommon in international marriages, particularly when financial resources are scarce and spouses are hundreds of miles away from each other. This might, however, be detrimental to Carmen, who might later want to remarry, and to any future partners and children both might have.

VI.  The Choice of the Applicable Law and the Recognition in Third States Another aspect of coordination that might interest parties relates to the recognition of the decision abroad. Once a dispute is solved, parties want the solution to be valid and enforceable, if possible, in all jurisdictions to which they are related. Take, for example, a foreign divorcing couple that is habitually resident in Spain. If they divorce in Spain, they will want the divorce decision to be recognised in the state of their common nationality. If, under the Private International Law rules of that state, recognition of the divorce decision is made conditional upon the application of national law to divorce, they would be well advised to select national law under the party autonomy rule contained in Article 5 of the Rome III Regulation.39 In the hypothesis, however, that national law should not provide for an easy divorce; they might, nevertheless, prefer the application of Spanish law as the law of their habitual 37 M Jänterä-Jareborg, ‘Jurisdiction and Applicable Law in Cross-Border Divorce Cases in Europe’ in J Basedow, H Baum and Y Nishitani (eds), Japanese and European Private International Law in Comparative Perspective (Tübingen, Mohr Siebeck, 2008) 317–43. 38 MM Ertman, Love’s Promises. How Formal and Informal Contracts Shape All Kinds of Families (Boston, Beacon Press, 2015) 168. 39 G Moreno Cordero, ‘La identidad causal como condición para el reconocimiento en Colombia de las decisiones españolas de divorcio: incidencia del Reglamento “Roma III”’ (2015) Revista electrónica de estudios internacionales 28–30.

256  Cristina González Beilfuss residence. Being able to divorce in Spain, even though it is perhaps not recognised in the state of origin, is better than not being able to divorce anywhere! The choice made will also very much depend on the circumstances of the case. If none of the spouses contemplates a return to their national state, they are likely to care less about recognition there than they would if they were looking forward to returning.40 Since the application of foreign law implies higher costs, this matter will also be considered. Whether coordination is or is not important depends on the parties’ interests, which are shaped by the circumstances of the case and the available financial resources.

VII.  The Informed Use of Party Autonomy I have argued that the party autonomy rule is useful to families. And yet, one could counterargue, there is scant evidence of it being used. And, if those to whom the rule is addressed do not find it useful, then it is perhaps of no use. Empirical research on Belgian Private International Law has indeed revealed that the choice-of-law provision that permits spouses to designate the law applicable to their divorce is hardly ever used in practice. The very few cases in which the law is chosen are choices in favour of the lex fori.41 This finding coincides with the results of a questionnaire-based survey on the application of Article 5 of the Rome III Regulation undertaken in the framework of the research project that has given rise to this publication. Participants were asked to evaluate how often choice-of-law agreements on the law applicable to divorce were made. Out of the 771 participants that answered the questionnaire, 651 did not even reply to the question! Among the 120 who did, 65 had no opinion or did not know (54.17%), 37 answered ‘Seldom (1–5 cases)’ (30.83%) and only 18 answered ‘Often (more than 5 cases)’ (15%).42 Analysis of Italian case law applying the Rome III Regulation provides a more nuanced picture. It reveals that there are a few cases in which spouses have designated Spanish or Mexican law corresponding to their common nationality. These laws allowed a more rapid and inexpensive divorce than Italian law, which would have been applicable under the default rule. The incentive to avoid Italian law was clear since prior to the 2015 divorce reform it required a minimum separation period of three years, whereas Spanish or Mexican law granted direct access to marriage dissolution.43 Such case law would demonstrate that the party autonomy rule is activated according to the parties’ interests, essentially when the application of the designated law produces an outcome

40 ibid 29. 41 J Verhellen, ‘Real-Life International Family Law – Belgian Empirical Research on Cross-Border Family Law’ in K Boele-Woelki, N Dethloff and W Gephart (eds), Family Law and Culture in Europe (Antwerp, Intersentia, 2014) 330–31. 42 MC Baruffi, C Fratea, D Danieli and C Peraro, Report on the Outcome of the Online Questionnaire (EUFam’s Project 2017) at www.eufams.unimi.it/wp-content/uploads/2017/06/EUFAMS-Report-OutcomesOnline-Questionnaire.pdf; this survey was carried out in the context of Research project JUST/2014/JCOO/ AG/CIVI/7729 (‘Planning the Future of Cross-Border Families: A Path Through Coordination’ (EUFam’s)). 43 I Viarengo, ‘International Divorce Proceedings in Italy: Issues Arising in the Case Law’ (2016) RDIPP 713.

The Role of Party Autonomy in Pursuing Coordination  257 more to the liking of the parties than would have been possible under the default choiceof-law provision. In a few other Italian cases, a Moroccan or Italian-Moroccan couple residing in Italy chose Moroccan law. Viarengo explains this by reference to cultural origin, but also points out that this choice makes recognition of the divorce decision in Morocco possible.44 In these cases, coordination was a major motivation. What this contribution has shown is that coordination using party autonomy requires parties, or more accurately their legal counsel, to be very sophisticated. ‘Marrying or married couples who have reason and inclination to sign legal agreements adjusting or clarifying the legal consequences of their marriage are uncommon’.45 Whether they will have access and be able to afford a lawyer with the knowledge necessary to find his or her way in the labyrinth of international Conventions and Regulations is questionable. To advise on party autonomy, this lawyer would also need to have knowledge in foreign and comparative law.46 At present, these resources are not available, which explains why the possibilities offered by party autonomy are rarely used.

VIII. Conclusion This chapter has shown that party autonomy can be used in the pursuit of coordination, even though it presents several shortcomings. It has been fundamentally argued that the function of party autonomy is not coordination and that coordination is only of limited and subordinate concern to the parties to whom the rule is addressed. Party autonomy has been analysed as a conflictual tool for private ordering that is activated by parties in accordance with their interest and resources in the pursuit of an outcome that is more advantageous than the outcome that can be obtained by applying default rules. Coordination might matter to parties, but is seldom their main concern.

44 ibid. 45 Baker and Silbaugh (n 19). 46 See N Dethloff, ‘Denn sie wissen nicht, was sie tun. Parteiautonomie im Internationalen Familienrecht’ in N Witzleb, R Ellger, P Mankowski, H Merkt and O Remien, Festschrift für Dieter Martiny zum 70. Geburtstag (Tübingen, Mohr Siebeck, 2014) 57–64.

258

19 The 1996 Hague Convention on the Protection of Children MARIA CATERINA BARUFFI

I. Introduction The Brussels IIa Regulation1 only provides for rules concerning jurisdiction, recognition and enforcement of decisions, and cooperation between central authorities. Consequently, there is no EU PIL instrument regulating the law applicable to parental responsibility matters, as opposed to matrimonial matters in relation to which the Rome III Regulation2 governs the law applicable to divorce and legal separation for those Member States that participate in this enhanced cooperation.3 This legislative gap is, however, filled by another international legal instrument, namely the 1996 Hague Convention on the Protection of Children,4 which has entered into force, among others, for all EU Member States. Prior to that, each Member State had to refer to its domestic PIL statutes, with the consequence that legal certainty could practically be compromised. It is worth mentioning that Italy was the last EU Member State to ratify the 1996 Hague Convention on the Protection of Children on 30 September 2015,5 but has not yet passed any implementing legislation, as the draft 1 The bibliography on the Regulation is particularly extensive: besides the contributions in this volume, see eg, P McEleavy, ‘Brussels II bis: Matrimonial Matters, Parental Responsibility, Child Abduction and Mutual Recognition’ (2004) 53 ICLQ 503; N Lowe, M Everall and M Nicholls, The New Brussels II Regulation: A Supplement to International Movement of Children (Bristol, Jordan Publishing, 2005); U Magnus and P Mankowski (eds), European Commentaries of Private International Law. Brussels IIbis Regulation (Cologne, Verlag Dr. Otto Schmidt, 2017). 2 See generally MC Baruffi, ‘Il regolamento sulla legge applicabile ai “divorzi europei”’ (2010) 16 Il Diritto dell’Unione europea 867; P Franzina, ‘The Law Applicable to Divorce and Legal Separation Under Regulation (EU) No 1259/2010 of 20 December 2010’ (2011) (2) CDT 85; I Viarengo, ‘Il Regolamento UE sulla legge applicabile alla separazione e al divorzio e il ruolo della volontà delle parti’ (2011) 47 RDIPP 601. 3 The Member States currently participating in the enhanced cooperation (as of 24 May 2018) are the following: Belgium, Bulgaria, Germany, Spain, France, Italy, Latvia, Luxembourg, Hungary, Malta, Austria, Portugal, Romania, Slovenia and the three that have joined at a later stage, ie, Lithuania, Greece and Estonia. 4 The full text of the Convention (both in English and French) and the regularly updated status table are available at www.hcch.net. 5 Law No 101 of 18 June 2015 ‘Ratifica ed esecuzione della Convenzione sulla competenza, la legge applicabile, il riconoscimento, l’esecuzione e la cooperazione in materia di responsabilità genitoriale e di misure di

260  Maria Caterina Baruffi law is still under discussion in the Justice Committee of the Italian Senate.6 In relations between Contracting States the 1996 Hague Convention on the Protection of Children replaces the previous 1961 Hague Convention on the Protection of Infants by virtue of Article 51 of the former. However, Article 42 of the Italian PIL Act7 still contains an express reference to the 1961 Hague Convention on the Protection of Infants to determine the law applicable to measures of protection of children and no legislative amendment has been introduced so far.8 On a more general note, the 1996 Hague Convention on the Protection of Children was drafted within the framework of the Hague Conference on Private International Law (HCCH), whose aim is the promotion of cross-border cooperation in the field of civil and commercial matters. It is precisely for this statutory purpose, which can directly impact the civil judicial cooperation policy, that the EU could become a member of the HCCH in 2007. Negotiations for membership had already started in 2002, and on 5 October 2006, the Council of the EU adopted the Decision 2006/719/ EC,9 thereby declaring to accept the Conference Statute (provided as Annex IV to the Decision) from the date of the admission of the Community as a HCCH member. In June 2005, the HCCH Diplomatic Conference adopted the amendments to the Statute that allowed a regional economic integration organisation (REIO) to accede to it. In Annex II to the Decision, the matters pertaining to both exclusive and shared competences of the EU are specifically listed, and mention is also made of its external field of action. Indeed, according to well-established CJEU case law10 now codified in Articles 3 Paragraph 2 and 216 Paragraph 1 TFEU, whenever the EU has enacted measures included in a competence conferred by the Treaties, it can also conclude those international agreements that are necessary to the fulfilment of their objectives.11 However, as to the 1996 Hague Convention on the Protection of Children, the former EC could not accede to it, since only sovereign states were allowed to be parties thereto. This was notwithstanding the shared competence held by the Community that was already exercised through the Brussels II Regulation regarding jurisdiction, and recognition and enforcement of judgments in matters of parental responsibility for children of both spouses (whereby the competence had become exclusive). Instead, as far as the applicable law is concerned, Member States retained their competence. A specific Decision protezione dei minori, fatta all’Aja il 19 ottobre 1996’. See generally C Cottatellucci, ‘La convenzione de L’Aja del 19 ottobre 1996: contenuti ed ambiti di competenza’, at www.minoriefamiglia.it/download/cottatellucciratifica-convenzione-aja.pdf; MG Ruo, ‘La ratifica della Convenzione dell’Aja del 19 ottobre 1996’ (2015) 4 Minori giustizia 43. With regard to the parliamentary debate on the legal institution of kafalah see C Peraro, ‘Il riconoscimento degli effetti della kafalah: una questione non ancora risolta’ (2015) 51 RDIPP 557; on the relevance of kafalah in the Italian legal order after the ratification of the Convention see E Avezzù, ‘Problemi relativi alla giurisdizione italiana e agli effetti della kafalah in Italia’ (2015) 4 Minori giustizia 55. 6 Atto Senato n. 1552-bis at www.senato.it/leg/17/BGT/Schede/Ddliter/dossier/45357_dossier.htm. 7 Law no 218 of 31 May 1995 ‘Riforma del sistema italiano di diritto internazionale privato’. 8 On the uncertainty arising out of the current wording of Art 42 of the Italian PIL Act, see MC Baruffi, ‘La Convenzione dell’Aja del 1996 sulla tutela dei minori nell’ordinamento italiano’ (2016) 52 RDIPP 980. This point is further discussed in section III. 9 Decision 2006/719/EC on the accession of the Community to the Hague Conference on Private International Law [2006] OJ L297/1. 10 Case 22/70 Commission v Council [1971] ECR 263, ECLI:EU:C:1971:32 (ERTA). 11 On the external relations of the EU in the area of Private International Law, see most recently P Franzina (ed), The External Dimension of EU Private International Law after Opinion 1/13 (Cambridge–Antwerp– Portland, Intersentia, 2017).

The 1996 Hague Convention on the Protection of Children  261 was thus required to authorise Member States, by way of exception, to sign, ratify or accede to the 1996 Hague Convention on the Protection of Children in the interest of the Community.12 In addition, the Council imposed on the Member States (with the exception of Denmark)13 the further obligation to make a declaration in order to ensure continuity with the relevant internal Community laws on recognition and enforcement of judgments laid down in particular by the Brussels II Regulation (then substituted by Brussels IIa Regulation). This was deemed necessary to guarantee legal certainty in relation to the correct interpretation of the coordination rule provided by Article 52 of the 1996 Hague Convention on the Protection of Children.14 Unlike the Maintenance Regulation, whose Article 15 recalls the 2007 Hague Maintenance Protocol,15 the Brussels IIa Regulation does not refer to the 1996 Hague Convention on the Protection of Children in the context of specific provisions on the applicable law, but rather in Articles 61–62 thereof, contained in Chapter V ‘Relations with other instruments’.16 The former states that the Regulation supersedes the Convention

12 Council Decision 2003/93/EC of 19 December 2002 authorising the Member States, in the interest of the Community, to sign the 1996 Hague Convention on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children [2003] OJ L48/1; Council Decision 2008/431/EC of 5 June 2008 authorising certain Member States to ratify, or accede to, in the interest of the European Community, the 1996 Hague Convention on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children and authorising certain Member States to make a declaration on the application of the relevant internal rules of Community law [2008] OJ L151/36. 13 Denmark is not bound by the Brussels IIa Regulation, but has been a Contracting State of the 1996 Hague Convention on the Protection of Children since 1 October 2011 in its capacity as member of the HCCH (Commission of the European Communities, ‘Proposal for a Council Decision authorising the Member States to ratify, or accede to, in the interest of the European Community the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children (the 1996 Hague Convention)’ COM(2003) 348 final, para 11). 14 In the literature, M Cremona, ‘Disconnection Clauses in EU Law and Practice’ in C Hillion and P Koutrakos (eds), Mixed Agreements Revisited. The EU and its Member States in the World (Oxford–Portland, Hart Publishing, 2010) 167. See generally also N Lowe, ‘International Developments. The 1996 Hague Convention on the Protection of Children – a Fresh Appraisal’ (2002) 14 Child&FamLQ 192; M Cremona, ‘Member States as Trustees of the Community Interest: Participating in International Agreements on Behalf of the European Community’, (2009) EUI Working Papers Law 2009/17 at cadmus.eui.eu/handle/1814/12881; PA De Miguel Asensio, ‘International Conventions and European Instruments of Private International Law: Interrelation and Codification’ in PA De Miguel Asensio and JS Bergé (eds), The Place of International Agreements and European Law in a European Code of Private International Law, in M Fallon, P Lagarde and S Poillot Peruzzetto (dirs), Quelle architecture pour un code europeén de droit international privé? (Frankfurt, Peter Lang, 2011) 185; L Tomasi, ‘Articoli 59–63 Regolamento (CE) 27 novembre 2003, n. 2201/2003’ in A Zaccaria (dir), Commentario breve al diritto della famiglia, 3rd edn (Milano, Wolters Kluwer–CEDAM, 2016) 2618. 15 The full text of the Protocol (both in English and French) and the regularly updated status table are available at www.hcch.net. 16 T Kruger, ‘Brussels IIa Recast moving forward’ (2017) NedIPR 472–74, underlines the ‘simplistic’ character of this disconnection rule, and the welcomed amendments introduced in the (then) Recast Proposal. On the relations between the two international instruments eg, P McEleavy, ‘The 1996 Hague Convention and the European Union: Connection and Disconnection’ in A Commitment to Private International Law. Essays in Honour of Hans van Loon, (Cambridge–Antwerp–Portland, Intersentia, 2013) 371–80; M Gration, I CurrySumner, D Williams, H Setright and M Right, International Issues in Family Law: The 1996 Convention on the Protection of Children and Brussels IIa (Bristol, Jordan Publishing, 2015); J Pirrung, ‘Article 61. Relations with the Hague Convention of 19 October 1996 on Jurisdiction, Applicable law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures of Protection of Children’ and ‘Article 62. Scope of effects’ in Magnus and Mankowski, European Commentaries of Private International Law. Brussels IIbis Regulation (n 1) 466–69, 469–70, and generally Part VIII of this volume (Relations with Other Instruments).

262  Maria Caterina Baruffi whenever: (a) ‘the child concerned has his or her habitual residence on the territory of a Member State’ and (b) with regard to the recognition and enforcement of a judgment given in a court of a Member State in the territory of another Member State, ‘even if the child concerned has his or her habitual residence on the territory of a third state which is a Contracting Party to the … Convention’.17 The latter Article provides on a residual basis that the Convention ‘shall continue to have effect in relation to matters not governed by [the] Regulation’. The possibility of an ‘interference’ between different legal sources regulating parental responsibility matters was already explicitly recognised by the 1996 Hague Convention on the Protection of Children itself, in Article 52. More precisely, according to Paragraph 2 thereof, Contracting States may conclude further agreements that contain provisions on matters regulated by the Convention, and this reference was clearly inserted with the negotiation of the (then) Brussels II Convention between EU Member States in mind.18 From a practical perspective, it should be noted that possible gaps might arise when applying certain jurisdictional rules of the two instruments according to these disconnection clauses. For instance, in a case where the child is habitually resident in a Member State, but has a particular connection with a third country, a transfer of jurisdiction to the courts of the latter state could not be ordered on the basis of Article 15 of the Brussels IIa Regulation (which only applies between Member State courts), and neither could it be pursuant to Article 8 of the 1996 Hague Convention on the Protection of Children because of the precedence given to the Regulation by Article 61(a) thereof.19 Precisely to overcome similar issues, the new Brussels IIter Regulation20 retains the disconnection rules set out in current Article 61, while introducing clarifications with regard to the applicability of the 1996 Hague Convention on the Protection of Children in specific situations where the Regulation does not apply, and namely choice-of-court agreements, transfer of jurisdiction, concurrent proceedings involving Member States courts and courts of a third state party to the Convention (new Article 97(2)). This choice of not regulating the law applicable to parental responsibility has been confirmed in the new Brussels IIter Regulation. In particular, the coordination between the Regulation and the 1996 Hague Convention on the Protection of Children remains

17 This specification relates to the declaration on the application of the relevant EU rules on recognition and enforcement (namely, those laid down in Brussels II/IIa Regulation) that EU Member States were required to make when signing the 1996 Hague Convention on the Protection of Children in the interest of the Community: see above n 13. 18 As underlined in the Explanatory Report on the 1996 Hague Child Protection Convention by Paul Lagarde (Lagarde Report) [1998] 603, para 172 at www.hcch.net/en/publications-and-studies/details4/?pid=2943. 19 As underlined also by M Župan, ‘Scope of Application, Definitions and Relations to Other Instruments’ in C Honorati (ed), Jurisdiction in Matrimonial Matters, Parental Responsibility and International Abduction. A Handbook on the Application of Brussels IIa Regulation in National Courts (Torino–Frankfurt am Main, Giappichelli Editore–Peter Lang, 2017) 33, referring to the case West Sussex County Council v H [2014] EWHC 2550 (Fam). In that instance, the court indeed concluded that it was not obliged to consider actively the transfer of proceedings to the non-Member State (Albania) ‘as a result of either the [1996] Convention or Brussels II Revised’. 20 It will apply starting from 1 August 2022. On the recast process of Brussels IIa Regulation see generally ‘The revision of the Brussels IIbis Regulation (special issue)’ (2015) NedIPR; T Kruger and L Samyn, ‘Brussels II bis: Successess and Suggested Improvements’ (2016) 12 JPIL 132; C Honorati, ‘La proposta di revisione del regolamento Bruxelles II-bis: più tutela per i minori e più efficacia nell’esecuzione delle decisioni’ (2017) 53 RDIPP 247; Kruger (n 16).

The 1996 Hague Convention on the Protection of Children  263 regulated under a general perspective in the new Article 97 of the Recast, and a mention of the applicable law is made in Recital 92 thereof, which bridges the gap existing in the Regulation by stating that the reference in Article 15(1) of the 1996 Hague Convention on the Protection of Children to ‘the provisions of [its] Chapter II’ shall be understood as referring to ‘the provisions of this Regulation’.21 This clarification is considered necessary to overcome the wording of Article 15 of the 1996 Hague Convention on the Protection of Children according to which the authorities of Contracting States shall apply their own law when exercising their jurisdiction under that legal instrument, and thus to reiterate the primacy of the Regulation over the Convention as to the system of jurisdiction in relation to parental responsibility matters.22 Besides legislation, however, it should be borne in mind that a coordination between international legal sources governing parental responsibility matters, and family law in general, exists also on a different level, namely that of interpretation. Indeed, the mutual influence23 established between the international and regional frameworks (on the one hand, the United Nations and the HCCH, and on the other hand, the EU and the Council of Europe) results in a number of common legal concepts whose interpretation may ‘spill over’ in the decisions of the respective judicial bodies.24 This practice does not only positively impact on consistency in the case law, but also ensures the further development of a truly global interpretation of child protection instruments that is able to fill possible gaps existing between the various systems.25 And this is all the more

21 It is worth mentioning that the final text of the Brussels IIter Proposal has not adopted the proposal of the European Commission on this point, which would have provided this clarification regarding the reference to the jurisdictional regimes of the two instruments directly in the disconnection rule of Art 75 of the Brussels IIter Proposal, and not in a Recital. For a critical view on the legislative choice ultimately adopted, see L Carpaneto, ‘La ricerca di una (nuova) sintesi tra interesse superiore del minore “in astratto” e “in concreto” nella riforma del regolamento Bruxelles II-bis’ (2018) 54 RDIPP 954. 22 See Part XI of this volume (Deliverables of the Project), and in particular the Report on the internationally shared good practices, s 37, where it was specified that a ‘bolder reference’ to the conventional regime on the applicable law was avoided ‘mainly due to policy constraints’. 23 H Baker and M Groff, ‘The impact of the Hague Conventions on European family law’ in JM Scherpe (ed), European Family Law. The Impact of Institutions and Organisations on European Family Law, I (Cheltenham–Northampton, Edward Elgar Publishing, 2016) 148, refer precisely to a ‘matrix of mutual influences’ existing in Europe in the area of family law, which comprises the United Nations and the HCCH as concerns the international level, and the regional European bodies. 24 An example of this ‘spill-over effect’ can be found in Case C-404/14 Marie Matoušková [2015] ECLI:EU:C:2015:653, where the CJEU considered the approval of an inheritance settlement agreement concluded between the surviving spouse and a guardian ad litem on behalf of minor children as falling within the scope of Brussels IIa Regulation (and not of the Succession Regulation) by explicitly supporting its interpretation with the reference to the Lagarde Report on the 1996 Hague Convention (para 32). Generally, a ‘cross-interpretation’ of concepts that are common to both the EU and international instruments is more often found in the opinions of Advocates General. Among the most recent examples, see Opinion of Advocate General Szpunar in Case C-335/17 Neli Valcheva v Georgios Babanarakis [2018] ECLI:EU:C:2018:242 paras 66–74, where the inclusion of rights of access of persons other than parents (namely, grandparents) within the scope of application of Brussels IIa Regulation was read in light of the 1996 Hague Convention on the Protection of Children, as well as the 2003 Convention on Contact concerning Children (‘historical reading of the provisions of [the] Regulation’). 25 For instance, S Leonard, ‘Protecting Children beyond Borders. In Support of Multi-Disciplinary and International Child Protection’ (Winter–Spring 2018) The Judges’ Newsletter on International Child Protection 31–33, calls for a renewed confidence in the international practice among child-protection professionals, whose background should be found in ‘values founded in internationalism, in a collaborative and multidisciplinary approach’.

264  Maria Caterina Baruffi so, when secondary EU legislation implements international obligations binding upon the EU (ie, whenever an international agreement concluded by the EU is given effect through measures of EU secondary law). In this case, both EU and national courts must determine the objectives pursued by EU law in accordance with the principle of consistent interpretation.26

II.  The Law Applicable to Parental Responsibility under the 1996 Convention Regime A.  Article 15: General Rule According to Article 15 of the 1996 Hague Convention on the Protection of Children, the general principle is the coincidence between forum and ius, in order to facilitate the exercise of the authorities’ jurisdiction. This rule in fact makes it possible for the authorities of Contracting States to apply their internal law, which is the law they are most familiar with.27 However, Article 15 provides an exception to this general rule, which should not be ‘utilised too easily’:28 Paragraph 2 states that, ‘in so far as the protection of the person or the property of the child requires’, authorities may apply or take into consideration the law of another state (even that of a non-Contracting State) with which the situation has a substantial connection. As the Convention does not clarify the meaning of the wording ‘substantial connection’, the state of which the child is a national or in which his/her property are located could be considered in this regard, in accordance with its Article 8(2). Moreover, when applying this provision, authorities should be sure that it is in the best interests of the child. Pursuant to Article 5(2) of the Convention, a change in the child’s habitual residence (to another Contracting State)29 will result in a change of the authorities having jurisdiction. Additionally, there will be a change of the law governing the conditions of application – not defined in the Convention – of the measures taken in the state of the former habitual residence. Beside the general rule provided in Article 15, the Convention establishes a set of conflict-of-laws rules applicable to specific situations related to parental responsibility. Each of them is separately assessed in the following subparagraphs.

26 This further aspect is thoroughly investigated in the broader context of methods of interpretation adopted by the CJEU by K Lenaerts and JA Gutiérrez-Fons, ‘To Say What the Law of the EU Is: Methods of Interpretation and the European Court of Justice’ (2013) EUI Working Paper AEL 2013/9 29–35 at cadmus. eui.eu/handle/1814/28339. 27 Lagarde Report (n 18) 573, para 86. Further advantages are underlined by N Lowe and M Nicholls, The 1996 Hague Convention on the Protection of Children (Bristol, Jordan Publishing, 2012) 57. 28 Lagarde Report (n 18) 575, para 89. 29 If the habitual residence is located in a non-Contracting State, the situation would fall outside the scope of application of the Convention, and therefore national laws on recognition and enforcement would apply.

The 1996 Hague Convention on the Protection of Children  265

B.  Article 16: Attribution or Extinction of Parental Responsibility by Operation of Law According to Article 16, the attribution or the extinction of parental responsibility by operation of law, without the intervention of a judicial or administrative authority, is governed by the law of the state of the habitual residence of the child (Paragraph 1). Furthermore, Paragraph 2 specifies that, where the attribution or the extinction of parental responsibility may occur as a result of an agreement or a unilateral act, the applicable law is that of the state of the child’s habitual residence at the time when the agreement or unilateral act takes effect, even if it is the law of a non-Contracting State (Article 20). However, in the event that a judicial or administrative authority is involved, the general rule established in Article 15(1) shall apply.30 Parental responsibility that exists under the law of the state of the child’s habitual residence subsists after a change of that habitual residence, in order to ensure continuity in the parent–child relationship (Paragraph 3). Furthermore, if the child’s habitual residence changes, pursuant to Article 15(4) the attribution of parental responsibility by operation of law to a person who does not already have such responsibility is governed by the law of the state of the new habitual residence. In the light of the foregoing, two opposite principles govern the rules set out in Paragraphs 3 and 4 of Article 16, namely those of continuity and mutability. Nevertheless, they both aim at ensuring the exercise of parental responsibility over a child. The coexistence of different parental responsibility holders also cannot be excluded, as a result of the application of the laws of the former and the new habitual residence.

C.  Articles 17–18: Exercise, Termination and Modification of Parental Responsibility The 1996 Hague Convention on the Protection of Children provides that the law of the state of the child’s habitual residence governs the exercise of parental responsibility, even in case of a change in the place of habitual residence (Article 17). Therefore, the Convention makes a distinction between the attribution of parental responsibility, governed by Article 16, and its exercise, governed by Article 17. The distinction becomes relevant in the event of a change of the child’s habitual residence, since the exercise of parental responsibility obeys the principle of mutability. Consequently, the holder of parental responsibility under the law of the state of former habitual residence retains such a right, but the holder will exercise it under the conditions provided by the law of the state of the child’s new habitual residence.31

30 Lowe, ‘International Developments. The 1996 Hague Convention on the Protection of Children – a Fresh Appraisal’ (n 14) 197. 31 Lagarde Report (n 18) 581, para 109.

266  Maria Caterina Baruffi Pursuant to Article 18,32 parental responsibility may be terminated or the conditions of its exercise may be modified by measures taken under the lex fori by the authority whose jurisdiction is based on Articles 5–10 of the Convention. This rule aims at avoiding the difficulties that may stem from concurrent parental responsibility rights resulting from the laws of the child’s various habitual residences. Indeed, subsequent relocations of the child may result in changes in habitual residence and difficulties in the coordination between the different laws governing parental responsibility may arise. This is particularly important to take into account because the underlying legal situations are usually meant to have extended effects over time.

D.  Article 19: Protection of Third Parties Article 19 protects third parties who in good faith enter into a transaction in the state of the child’s new habitual residence with the person who acts as legal representative of the child. The Convention thus establishes that the validity of a transaction entered into between a third party and another person who would be entitled to act as the child’s legal representative under the law of the state where the transaction was concluded cannot be contested, and the third party cannot be held liable, on the sole ground that the other person was not entitled to act as the child’s legal representative under the law designated by the provisions of the Convention. This rule, however, does not apply if the third party knew, or should have known, that parental responsibility was governed by the latter law and if the transaction was entered into between persons that are not present on the territory of the same state (Paragraph 2). Consequently, the rule does not apply whenever the transaction is negotiated at a distance.33

E.  Articles 20–22: Universal Character, Renvoi and Public Policy In accordance with other EU legal instruments,34 the rules concerning applicable law set out in the 1996 Hague Convention on the Protection of Children are of universal application, meaning that the designated law may even be the law of a non-Contracting State (Article 20). Nevertheless, it could be inferred from Article 15 that this provision applies only when parental responsibility is attributed or extinguished without a judicial or administrative authority being involved.35 In other words, this provision applies to those cases governed by Article 16, as the principle of coincidence between forum and ius would otherwise be compromised. Article 21(1) further states as a general rule that renvoi is excluded. However, if the law applicable according to Article 16 to the attribution or extinction of parental 32 See Practical Handbook on the Operation of the 1996 Hague Child Protection Convention (The Hague, The Hague Conference on Private International Law Permanent Bureau, 2014) 98, for some examples of the situations falling within the scope of application of the provision at issue. 33 See Lagarde Report (n 18) 583, para 113. 34 Art 4 of Rome III Regulation. 35 F Mosconi and C Campiglio, Diritto internazionale privato e processuale. Statuto personale e diritti reali, II, 4th edn (Milano, Wolters Kluwer–UTET Giuridica, 2016) 41; see also Lagarde Report (n 18) 583, para 115.

The 1996 Hague Convention on the Protection of Children  267 responsibility is that of a non-Contracting State, which designates the law of another non-Contracting State that would apply its own law, the law of the latter state applies. According to Article 22, the application of the law designated by the Convention can be refused only if it would be manifestly contrary to public policy, ‘taking into account the best interests of the child’ (thus following the recurring wording included in other international instruments on child protection).36

III.  Practical Aspects: General Trends in National Case Law This section provides a general overview of the main trends emerging from national case law37 with regard to the application of the 1996 Hague Convention on the Protection of Children in the context of Brussels IIa proceedings. On a preliminary note, it must be mentioned that the Convention is frequently applied without ascertaining whether the other state involved in the case at issue is indeed a Contracting Party thereto.38 In other words, it may occur that the national court, which is called upon to hear a cross-border parental responsibility case governed by the Brussels IIa Regulation and has to determine the applicable law pursuant to the 1996 Hague Convention on the Protection of Children, does not verify whether this international instrument has actually been ratified by and entered into force in the other state(s) involved, but directly applies the relevant rules of the Convention.39 This could result in a misapplication of the Convention due to the difficulties in understanding its functioning from an international law perspective. A further aspect concerns the practical application of the Convention provisions on the applicable law (Articles 15–18). Notwithstanding their seemingly clear wording, the references to this conflict-of-laws regime are not consistent in the collected judgments, which are typically rendered in the context of judicial proceedings regarding separation or divorce and ancillary parental responsibility claims (rights of custody and/or access). In most cases, Article 15 and/or Article 17 are recalled in order to determine the

36 The reference regards, in particular, the Brussels IIa Regulation, whose Art 23 provides for the grounds of non-recognition of foreign decisions. 37 The national case law herein cited and commented has been collected by the partners of the ‘EUFam’s’ project and filed in a public database at www.eufams.unimi.it/category/database. The alphanumeric code following each decision cited in the footnotes represents the uniform classification tool adopted in order to populate the database. For a comprehensive analysis of the national case law classified in the ‘EUFam’s’ database, see the National Reports in Part X of this volume. 38 F Mosconi and C Campiglio, Diritto internazionale privato e processuale. Parte generale e obbligazioni, I, 8th edn (Milano, Wolters Kluwer–UTET Giuridica, 2017) 29f. In order to ‘fill the gaps’ in the application of the Hague Conventions on family law in the absence of a co-signing state, in the US literature it has been suggested to refer to the domestic law (namely, the Uniform Child Custody Jurisdiction and Enforcement Act), which is grounded on policy purposes similar to those of the Convention and can serve as a mechanism to solve the cross-border dispute consistently with the international legal framework: AA Zashin, CR Reynolds and AM Keating, ‘Filling the Gaps with Public Policy: the Application of the Hague Convention Protocol in US Courts in the Absence of a Co-Signing State’ (2014) IntJLPolFam 121. 39 eg, Audiencia Provincial Barcelona, 9 April 2014 No 262/2014, ESS20140409 (the parties were a Spanish and an Indian national); Audiencia Provincial Barcelona, 17 April 2015 No 256/2015, ESS20150417 (the parties were a Spanish and a Peruvian national); Cour d’appel de Caen, 3 November 2016 No 15/03741, FRS20161103 (the parties were Algerian nationals).

268  Maria Caterina Baruffi law applicable to the claims on the exercise of parental responsibility rights.40 In rarer cases, Article 16 is also referred to in this regard,41 even though it governs the applicable law to the attribution or extinction of parental responsibility whenever a judicial or administrative authority is not (actively) involved.42 It should be specified, however, that the actual outcomes of the decisions remained unaffected by the different legal bases. Indeed, the jurisdiction of national courts has usually been grounded on Article 8 of the Brussels IIa Regulation, thus on the connecting factor of the habitual residence of the child. The applicable law has been the national law, being both the lex fori and the law of the habitual residence of the child. Possible divergences between forum and ius may conversely arise in cases where jurisdiction is based on either Article 12 or Article 15 of the Brussels IIa Regulation, even though the narrow conditions required for their application should determine the applicable law according to the best interests of the child. These difficulties in interpreting the relevant rules on the applicable law have been underlined also in the Responses submitted by Belgium to the questionnaire concerning the practical operation of the 1996 Hague Convention on the Protection of Children.43 In particular, the Belgian Central Authority has recognised the respective purview of Article 15 (regarding measures of protection taken by the judicial authority having jurisdiction) and Article 16 (referred to in order to determine the holder of parental responsibility over a child at a given time). However, the Belgian Central Authority could not properly figure the actual scope of application of Article 17 in relation to these provisions, given that not even the Lagarde Report seemed to offer substantial guidance in this regard.44 Another debatable issue appears to be the temporal scope of application of the 1996 Hague Convention on the Protection of Children, which has come forward especially in the Italian case law (the international instrument entered into force in this legal system only recently, on 1 January 2016). In this regard, Article 53(1) generally provides that the Convention shall apply to measures taken in a state ‘after [it] has entered into force for that State’. However, there is no specific rule concerning proceedings that were pending and in which no measure had yet been taken at the date of entry into force, with the consequence that the laws of each Contracting State govern these situations.45

40 eg, Cour d’appel de Lyon, 3 December 2013 No 13/01428, FRS20131203; Cour d’appel de Versailles, 6 May 2014 No 13/03514, FRS20140506; Audiencia Provincial Barcelona, 30 October 2014 No 665/2014, ESS20141030; Audiencia Provincial Barcelona, 8 January 2015 No. 10/2015, ESS20150108; Juzgado de Violencia sobre la Mujer Tarragona, 26 January 2015 No 9/2015, ESF20150126; Tribunal Superior de Justicia Aragón, 6 October 2015 No 27/2015, EST20151006; Trib Roma, 21 October 2016, ITF20161021a; Trib Roma, 19 May 2017, ITF20170519a; Trib Roma, 7 July 2017, ITF20170707; Trib Aosta, 10 July 2017, ITF20170710; Trib Roma, 21 July 2017, ITF20170721a; Trib Padova, 14 September 2017, ITF20170914. 41 eg, Trib Padova, 25 July 2016, ITF20160725; Trib Belluno, 27 October 2016, ITF20161027, commented by MC Baruffi, ‘Famiglia, regolamenti UE e convenzioni internazionali: considerazioni sulla sentenza del Tribunale di Belluno’ Il Quotidiano giuridico 23 February 2017 at www.quotidianogiuridico.it; Trib Belluno, 9 November 2017, ITF20171109. 42 Lagarde Report (n 18) 577, para 98. 43 Responses to the questionnaire concerning the practical operation of the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in Respect of Parental Responsibility and Measures for the Protection of Children (Prel Doc No 1 of December 2016) at assets.hcch. net/docs/0e36df37-5a13-4622-9655-acee6fdccc9a.pdf. 44 Lagarde Report (n 18) 577–81, paras 86–109. 45 ibid 603, para 177.

The 1996 Hague Convention on the Protection of Children  269 More precisely, in the Italian case law two opposite approaches seem to have been followed. In most cases, it was held that the situation fell outside the temporal scope of the Convention on the ground that the proceedings were already initiated before the entry into force of the Convention.46 More rarely, the Convention provisions were applied in the final decision that was issued after that date.47 In the latter instances, the element that appears to have been properly considered in order to apply the 1996 Hague Convention on the Protection of Children also to pending proceedings could be the lack of provisional measures taken at the time of its entry into force, but no specific reasoning on this point was given in the judgments. In addition, the reference to the previous 1961 Hague Convention on the Protection of Infants still provided in Article 42 of the Italian PIL Act causes an ambiguity that may undermine the proper application of the 1996 Hague Convention on the Protection of Children in the Italian legal order, even though this provision is supposed to apply only on a residual basis.48 Moreover, in those Member States comprising several territorial units, different sets of rules may apply in respect of the matters covered by the scope of application of the Convention. Following a recurring legislative option contained in other PIL instruments, the 1996 Hague Convention on the Protection of Children deals with these cases in Articles 47–48 thereof, establishing the general principle that the law of the relevant territorial unit should apply. However, in a number of analysed decisions, these provisions were improperly not recalled in order to designate the law of a specific territorial unit as applicable to the case at issue.49 Lastly, a brief consideration should be made with regard to another issue stemming from the Italian case law. The recently introduced Article 36-bis of the Italian PIL Act50 qualifies as overriding mandatory rules the provisions of domestic law concerning the attribution of parental responsibility to both parents, the parents’ duty to provide for child maintenance and the powers conferred to the judicial authority to restrict or terminate the exercise of parental responsibility in order to protect the child.51

46 eg, Trib Roma, 8 March 2016 No 4804, ITF20160308; Trib Roma, 12 April 2016, ITF20160412; Trib Roma, 28 September 2016 No 17955, ITF20160928; Trib Roma, 14 October 2016, ITF20161014; Trib Parma, 2 January 2017, ITF20170102, which expressly states that the 1996 Hague Convention on the Protection of Children is applicable only to disputes initiated after its entry into force by virtue of the principle of nonretroactivity. In some of these decisions, the 1996 Hague Convention on the Protection of Children was nonetheless recalled as an interpretative tool (‘in chiave dinamica’) to define the scope of the prior 1961 Hague Convention on the Protection of Infants (concerning the powers of authorities and the law applicable in respect of the protection of infants), which was applied in these instances by means of the reference ‘in any case’ to this instrument contained in Art 42 of the Italian PIL Act. 47 Trib Belluno, 27 October 2016 No 5217, ITF20161027; Trib Roma, 19 May 2017, ITF20170519a. 48 In particular, the reference to Art 42 of the Italian PIL Act does not seem correct in those cases where the other state involved is a Contracting State of the 1996 Hague Convention on the Protection of Children, and thus its application would have been possible on a direct basis, ie, without recalling the domestic provision. For an example of this questionable approach see Trib Alessandria, 11 December 2017, ITF20171211. 49 eg, Audiencia Provincial Barcelona, 27 June 2013 No 496/2013, ESS20130627; Audiencia Provincial Barcelona, 30 October 2014 No. 665/2014, ESS20141030; Audiencia Provincial Barcelona, 11 December 2014 No. 773/2014, ESS20141211; Audiencia Provincial Barcelona, 23 December 2014 No 817/2014, ESS20141223. 50 This provision was introduced by Legislative Decree No 154 of 28 December 2013 ‘Revisione delle disposizioni vigenti in materia di filiazione, a norma dell’articolo 2 della legge 10 dicembre 2012, n. 219’. 51 R Clerici, ‘Articolo 36-bis l. 31 maggio 1995, n. 218’ in Zaccaria (dir), Commentario breve al diritto della famiglia (n 14) 2492, criticises the provision as it could compromise the international uniformity of decisions.

270  Maria Caterina Baruffi However, the application of this Article could amount to a breach of international law (and EU law) performed by the state (more precisely, its judicial authorities)52 insofar as the domestic mandatory rule overrides the Convention’s provisions governing the applicable law.53 Therefore, it appears safer to conclude that the Convention provisions should in any case apply,54 unless the foreign law designated by these conflict-of-laws rules is manifestly contrary to public policy in light of the principles underlying the (inapplicable) domestic overriding mandatory rule.55

IV.  Final Remarks The possibility to draw definitive conclusions on the application of the 1996 Hague Convention on the Protection of Children in proceedings governed by the Brussels IIa Regulation proves to be a rather difficult task, especially taking into account that national case law is not particularly extensive. First, it must be considered that the interplay between the two international instruments is regulated only on a general basis (Articles 61–62 Brussels IIa Regulation), without any specific provision regarding the aspect of the applicable law, and this adds a degree of uncertainty upon national courts when dealing with parental responsibility disputes. Also in the Brussels IIter Regulation this regulatory approach is confirmed, albeit the clarification provided in its Recital 92, according to which the law applicable to parental responsibility matters is determined in accordance with ‘Chapter III of the 1996 Hague Convention’, should be welcomed from a practical point of view.56 In any case, the application of the Convention provisions remains governed by the general principles of the law of treaties, with occasional ambiguities that may jeopardise the uniformity of decisions and their subsequent circulation in the EU. Also, the practical implementation of the system of rules on the applicable law envisaged in the 1996 Hague Convention on the Protection of Children may be challenging, as the relationship between the general rule of Article 15 and the specific conflict-oflaws provisions has been misinterpreted in a number of decisions among those that have been assessed.

52 Case C-224/01 Gerhard Köbler v Republik Österreich [2003] ECR I-10239, ECLI:EU:C:2003:513; Case C-173/03 Traghetti del Mediterraneo SpA v Repubblica italiana [2006] ECR I-5177, ECLI:EU:C:2006:391. 53 Mosconi and Campiglio, Diritto internazionale privato e processuale. Parte generale e obbligazioni (n 38) 279–82; Clerici (n 51) 2443–45. 54 But see Trib Belluno, 27 October 2016 No 5217, ITF20161027, which seemingly supports the view that Art 36-bis imposes the application of the Italian substantive rules over the foreign law designated by the conflict-of-laws provisions of the Convention. 55 But see Mosconi and Campiglio, Diritto internazionale privato e processuale. Statuto personale e diritti reali (n 35) 203, who take the view that Art 36-bis of the Italian PIL Act, being an overriding mandatory rule, should apply even where the applicable law is designated by the conflict-of-laws provision of the Convention. However, they also suggest that the same outcome could have been better achieved by means of a special public policy clause in order to avoid the practical effect of preventing the application of the foreign law. 56 See also Part XI of this volume (Deliverables of the Project), and in particular the Policy Guidelines, s 39 ‘Reference to the 1996 Hague Convention’, where the introduction of an interpretative tool such as a Recital was indeed suggested with a view to supplementing the general rules on the relation between the Regulation and the 1996 Hague Convention on the Protection of Children.

The 1996 Hague Convention on the Protection of Children  271 Therefore, it could be provisionally argued that national courts still need to get accustomed to a complex legal instrument such as the 1996 Hague Convention on the Protection of Children, especially when it interplays with the Brussels IIa Regulation. The entry into force of the Convention in all EU Member States can nonetheless contribute to a consistent recourse to both legal sources and thus to the building of a more established case law that is able to provide sound guidance for the resolution of cross-border cases.

272

20 The Impact of the Proof of Foreign Law ROSARIO ESPINOSA CALABUIG

I. Introduction The application of foreign law by national authorities – judicial and extra-judicial – is probably one of the weakest points of the process of harmonisation of Private International Law (PIL) of the European Union (EU). The revolution of PIL began after the Treaty of Amsterdam and was later consolidated by the Lisbon Treaty, but has not had any impact on this crucial topic.1 A comparative review of European legislation demonstrates recurrent problems, such as unclear answers, inconsistencies between the theoretical and practical approaches, procedural obstacles etc. All this has negative consequences for the harmonisation process of private law and the PIL of the EU. In practice, detailed conflict rules coexist with unclear rules on the application and proving of a foreign law by the authorities, both judicial and extra-judicial, of a country. This supposes, at the same time, a clear promotion of the lex fori. The lack of common rules or principles in this regard can weaken the functioning of the single market, in particular by the imposition of unjustifiable burdens and costs on the parties that could come to be considered as a violation of the ECHR, in particular its Article 6 on the Right to a Fair Trial.2 All this has negative repercussions on citizens and their expectations in cross-border litigation (such as high costs, uncertainty, forum shopping etc). A complex and complete system of PIL is being constructed. The EU is creating a harmonised system to promote the same solution for litigation. However, in the end it is conditioned by local factors which do not favour certainty, legal security or justice. It is striking that few EU texts refer to this topic. For example, Article 30(1) of the Rome II Regulation3 does not refer to this topic. And nothing is said in the Stockholm 1 See LF Pace, Nuove tendenze del diritto dell’Unione europea dopo il Trattato di Lisbona (Milano, Giuffrè, 2012). 2 See C Esplugues, JL Iglesias, G Palao, R Espinosa and C Azcárraga, ‘General Report on the Application of Foreign Law by Judicial and Non-Judicial Authorities in Europe’ in C Esplugues, JL Iglesias and G Palao (eds), Application of Foreign Laws (Munich, Sellier, 2011) 6. 3 In particular, there is a review clause according to which: ‘1. Not later than 20 August 2011, the Commission shall submit to the European Parliament, the Council and the European Economic and Social Committee

274  Rosario Espinosa Calabuig Action Plan 2010–2014, whose revision was planned for 2017.4 Therefore, all efforts made by the EU and other institutions to achieve a common response are justified. In this regard, the Hague Conference of Private International Law has been working on this topic for the last few years and has indicated the need to work on future instruments in this area.5 But now the EU should take a turn.6 In the specific field of EU family law, it should be remembered that of the Regulations drafted on the scope of the applicable law, such as the Rome III Regulation, none expressly regulates either the imperative nature of its conflict rules or the treatment that the proof of the foreign law must receive in the process.7 However, the absence of a provision that establishes that the application of conflict rules is mandatory for the state parties (and not discretionary, which happens with the conflict rules in some states) and another that provides that the designated law should be applied ex officio by the judge, should not be interpreted to mean that both issues depend on the PIL of the forum.8 Therefore, bearing in mind the characteristics of the European Regulations, as well as the objectives they pursue, the application of the conflict rules they contain should be considered imperative. This approach also applies in the Member States whose PIL has a discretionary conflict system, whether legal or factual,9 which will be explained. This would be the first step. But we should go further and take a second step to harmonise the application of foreign law designated by the conflict rule of the EU Regulations, depending on the state of origin (EU Member State or third state). And this will be only possible if there are adequate procedural instruments in the national systems and also at an EU level. Important tools include the European Justice Network (EJN), but rendering it more useful than it is now. This is a big challenge. By now the existence of many disparities and particularities between Member States in this field, as described below, is the main obstacle to realising this second step. Examples will be provided through a checklist of the main questions that emerge on this topic.

a report on the application of this Regulation. If necessary, the report shall be accompanied by proposals to adapt this Regulation. The report shall include: (i) a study on the effects of the way in which foreign law is treated in the different jurisdictions and on the extent to which courts in the Member States apply foreign law in practice pursuant to this Regulation …’. 4 As announced at www.consilium.europa.eu/es/policies/strategic-guidelines-jha/. 5 See P Lortie and M Groff, ‘The Evolution of Work on Access to Foreign Law at the Hague Conference on Private International Law’ in Y Nishitani (ed), Treatment of Foreign Law – Dynamics Toward Convergence? (Cham, Springer, 2017) 615. 6 See the several proposals launched by academics and EU Projects in C Esplugues Mota, ‘Harmonization of Private International Law in Europe and Application of Foreign Law: The Madrid Principles of 2010’ (2011) XIII YBPrIL 273; and S Lalani, ‘A Proposed Model to Facilitate Access to Foreign Law’ (2011) XIII YBPrIL 299. 7 See I Queirolo and L Carpanetto, ‘Considerazioni critiche sull’estensione dell’autonomia privata a separazione e divorzio nel regolamento Roma III’ (2012) 48 RDIPP 59. 8 Following P Orejudo Prieto De Los Mozos, ‘Imperatividad de la norma de conflicto y prueba del Derecho extranjero en los reglamentos sobre ley aplicable a las situaciones privadas internacionales’ in X Abel Lluch, J Picó I Junoy and M Richard González (eds), La prueba judicial. Desafíos en las jurisdicciones civil, penal, laboral y contencioso-administrativo (Madrid, La Ley, 2011) 477. 9 M Virgós Soriano and FJ Garcimartín Alférez, Litigación internacional. Derecho procesal civil internacional, 2nd edn (Civitas, Madrid, 2007) 523.

The Impact of the Proof of Foreign Law  275

II.  Application by Judicial Authorities: Nature of Foreign Law One of the main issues in the application and proof of a foreign law is the nature of the foreign law in the various legal systems. In this sense, a comparative review of the legislation in Member States shows that most states advocate a legal nature of foreign law compared to a few that give it a factual nature, and others in which a hybrid nature prevails. These differences have repercussions on the role attributed to judges and the parties in determining the content of foreign law. In particular, those who advocate the status of foreign law as ‘law’ imply an active role for the courts in the argument and determination of the content of foreign law. This condition will also influence possible revisions. In those that advocate the factual nature of foreign law, the parties have the biggest, if not the only, role.10 However, practice shows the presence of many inconsistencies in the various state systems that are difficult to fit into either model.11

A.  Legal Nature of Foreign Law This approach is advocated in countries such as Austria, Belgium, Bulgaria, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Italy, Poland, Portugal, Slovakia, Slovenia and Sweden. However, there are differences in this approach because it is either expressly recognised (as in the majority of cases) or not by legislation. For example, in some countries where the legal nature of foreign law is expressly recognised (such as Belgium or Italy), it has nevertheless been restricted. In Belgium the High Court has considered sometimes that the revision of some cases is only possible if a breach of applicable Belgian choice-of-law rules is also invoked.12 In Italy, the Supreme Court has declared that foreign law will have a factual nature in certain cases, which generates great uncertainty.13 In other countries, for example Bulgaria, the legal status of foreign law is not expressly recognised. However, PIL legislation establishes the obligation of judges to apply foreign law on the understanding that the parties should not need to prove it as fact.14 In some countries, the absence of an express recognition of the legal status of foreign law is complemented by an active role of judges and doctrine. This would be the case in Germany, after the interpretation of Article 293 of the German Civil Procedure Code given by authors and courts.15 In other countries, such as France or Poland, this 10 In general, the legal status of foreign law is advocated in the majority of the EU (also in the Declaration on Equal Treatment of the Law of the Forum and Foreign Law by the Institute of International Law in 1989, at the Santiago de Compostela session). 11 See TC Hartley, ‘Pleading and Proof of Foreign Law: The Major European Systems Compared’ (1996) 45 ICLQ 271; R Hausmann, ‘Pleading and Proof of Foreign Law – a Comparative Analysis’ (2008) 8 EL Forum 2. 12 For instance, Cour de Cassation, 18 April 2005 (2005) Pasicrisie belge 895, mentioned in Esplugues, Iglesias and Palao, ‘General Report’ (n 2) 12. 13 More broadly, see I Queirolo, ‘Conoscenza del diritto straniero e contraddizioni della giurisprudenza italiana’ (2010) RDIPP 603–34. 14 N Natov et al, ‘Bulgaria’ in Esplugues, Iglesias and Palao (n 2) 148. 15 See Hausmann (n 11) 2.

276  Rosario Espinosa Calabuig condition is not recognised in any way, but it is accepted. The French Supreme Court has indicated that once a foreign law is designated by a conflict law, this is the applicable ‘Law’. In Poland, it is supported only by doctrine.16

B.  Factual Nature of Foreign Law The factual nature of foreign law is advocated in countries of the British tradition. This is the case in the United Kingdom, although there are exceptions in what is considered ‘a fact of a peculiar nature’. In other words, it has been interpreted that when the decision is appealed due to an inappropriate application of foreign law, it is no longer treated as factual; rather the review is carried out as if it were a legal matter.17 This interpretation is also advocated in Malta, Cyprus and Ireland.

C.  Hybrid Nature of Foreign Law In countries such as Spain or Luxembourg, foreign law is recognised as a factual condition, but this approach is contradicted by the role of judges as to the ascertainment of the content of foreign law. In particular, in Luxembourg Judges are entitled, but not obliged, to ascertain the content of foreign law if they have a proper knowledge of it. And the parties are not compelled to plead the foreign law, but if they do, they must prove its content.18 For this reason, foreign law can be considered to have a hybrid nature. Also, Spain considers foreign law to be factual, but with some particularities and inconsistencies. The Spanish system on treatment of foreign laws is regulated by different legal sources, principally Article 12.6.1 of the Civil Code as well as Articles 281 and 282 of the Civil Procedure Act of 2000 (CPA), and the Act of 29/2015 on International Legal Cooperation (Articles 33–35).19 In practice, these sources have not introduced relevant changes in this field in comparison with the old Article 12.6.2. Despite the mandatory character awarded to the choice-of-law rules (Article 12.6.1 of the Civil Code), and the lack of obligation for the parties to plead foreign law, the parties are compelled to prove its content (Article 281.2 CPA and Article 33 Act 29/2015). The inconsistency between the mandatory nature of conflict-of-laws rules and the burden of parties of proving the foreign law makes the system unsatisfactory, at least in the judicial scope because more flexible solutions can be found in the non-judicial scope.20 Nevertheless, there are also some opinions that favour the consideration of foreign law as a law, not a fact, in certain aspects.21 16 Esplugues, Iglesias and Palao, ‘General Report’ (n 2) 13. 17 See J Fawcett and JM Carruthers, Cheshire, North and Fawcett. Private International Law, 14th edn (Oxford, OUP, 2008) 111–13; R Fentiman, International Commercial Litigation (Oxford, OUP, 2010) 286–87. 18 A similar situation is produced in Luxemburg. See G Cuniberti and I Rueda, ‘Luxemburg’ in Esplugues, Iglesias and Palao (n 2) 256–57. 19 BOE (Spanish Official Journal) No 182 of 31 July 2015. 20 See C Azcárraga Monzonís, ‘Spain: The Application of Foreign Laws in Spain – Critical Analysis of the Legal Novelties of 2015’ in Nishitani (n 5) 329–46. 21 For example, parties are prevented from agreeing on the content of foreign law whereas they should have been granted that possibility should foreign law have been treated as a fact according to Art 281.3 CPA

The Impact of the Proof of Foreign Law  277 In other countries, such as Latvia and Lithuania, a hybrid nature of foreign law has been also advocated, so that in cases where foreign law is applied by international agreements it has a legal nature, but if it is applied by an agreement between the parties it is considered factual. In the Netherlands, generally it is considered as ‘Law’ by the jurisprudence. Thus, Article 25 of the Civil Procedure Code is interpreted as the obligation of the court to apply the conflict rules of the forum and the foreign law to which they may refer, although a review by the Supreme Court does not cover the application of foreign law (tertium genus).22

III.  The Mandatory Application of the Conflict Rule and Application of the Foreign Law There are good reasons, such as legal security and equal treatment, to advocate the imperative nature of conflict rules. In general, this type of rule is as mandatory as any other, so that in most systems the imperative aspect is not even expressly mentioned.23 Although it is not expressly regulated, the majority of the EU conflict rules are considered to be of mandatory application, except for some countries like Cyprus, Luxembourg and the United Kingdom. In others, it is uncertain, as is the case with Ireland and Malta. In countries with a legal nature of foreign law and imperative conflict rules, the parties are not bound to plead or prove its content. In turn, the discretionary nature of conflict rules implies the obligation to prove it in order to activate the PIL machinery. In countries like France, the conflict-of-law rule is considered mandatory depending on the ‘availability of laws’ of the case. If the parties remain silent, the judge shall invoke the foreign law, only if the laws referred to in the case ‘are not available’ to the parties. A similar position exists in Denmark, Finland and Sweden.24 In other countries, like Luxembourg, the courts can apply foreign law ex officio on certain occasions (if they know it). In Spain, notwithstanding the mandatory character of the conflict-of-law rule, in practice there is an inconsistency when applying the rule, as already mentioned.25 In this sense, the iura novit curia principle does not bind

(‘All those facts on which there is full agreement of the parties are exempt from prove except in cases where the subject matter of the process is out of power of disposition of the parties’). See JL Iglesias, C Esplugues, JL Iglesias and G Palao, ‘Spain’ in Esplugues, Iglesias and Palao (n 2) 357–58. 22 Esplugues, Iglesias and Palao, ‘General Report’ (n 2) 16–17. 23 Spanish law has an exception in an explicit provision: Art 12.6 of the Civil Code establishes that ‘the Courts and authorities shall apply ex officio the rules of conflict of Spanish law’. In accordance with this provision, and following the interpretation of the Spanish Supreme Court (Judgment 436/2005 of 10 June 2005, RJ/2005/6491), the parties do not need to invoke the applicability of a specific conflict-of-laws rule when a foreign element is involved in the private international situation, and they cannot agree to avoid its application either. See Azcárraga Monzonís (n 20) 329–46. 24 Esplugues, Iglesias and Palao, ‘General Report’ (n 2) 19. 25 About the evolution of the Spanish system before its reforms and its inconsistencies see L Carballo Piñeiro, ‘El carácter imperativo de la norma de conflicto y la prueba del derecho extranjero. Una relectura en clave procesal y constitucional’ (2001) 1 AEDIPr 485.

278  Rosario Espinosa Calabuig judges as regards foreign law and the burden of proof rests on the parties. According to Article 281 CPA: Object and need of proof: 1 …. 2. Custom and foreign law shall also be object of proof. The evidence of custom shall not be needed when the parties agree on its existence and content and its rules do not violate public policy. Foreign law shall be proved as regards its content and validity; the court may make use of all means of ascertainment deemed necessary for its implementation.

The Spanish situation shows that although there is an express provision stating that the conflict rule must be applied imperatively, it is only possible to respect this mandate if there are adequate procedural instruments. In particular, the authorities must be in a position to apply ex officio any law, not only that of the forum, but also a foreign law. If such application is subject to the practice of proof of law, such as when the applicable law is foreign, the evidence must be able to be demonstrated at the request of the authority. On the contrary, if the proof of foreign law remains in the hands of the parties, as is the case in the common law systems, conflict rules become discretionary, since the inactivity of such parties will be equivalent to the application of the law of the forum, unless the provision for such a case is to deny the claim,26 which has happened on occasion.27 In general, the application of conflict rules and the proof of foreign law is an extremely controversial issue in Spain as demonstrated in the EUFam’s Spanish Exchange Seminar, held in Valencia in October 2016. The interpretation given to this issue has led in practice to legal uncertainty given that some judges apply foreign law ex officio, while others apply Spanish law if the parties fail to prove foreign law.28 Unfortunately, a significant number of courts ignore the international element and directly apply Spanish law, not even indicating the applicable conflicts rule. As highlighted by some lawyers at the Seminar, this leads to great frustration on the side of the affected party in the proceeding. Practitioners agreed that the Spanish practice has to improve in these matters, but they also highlighted that it is necessary to enhance access to foreign law by promoting cooperation in the European area of justice and simplifying proof of foreign law.29

26 See Orejudo Prieto De Los Mozos (n 8). 27 This possibility has serious drawbacks. Not only can it lead to a denial of justice if the lack of evidence cannot be attributed to the parties, as in the Spanish Constitutional Court (Judgment 10/2000, 17 January 2000 at www.tribunalconstitucional.es), but, in addition, it would prevent the parties from returning to make the same claim, in accordance with the provisions of Art 400 CPA. See Orejudo Prieto De Los Mozos (n 8) 479; Virgós Soriano and Garcimartín Alférez (n 9) 521. 28 See R Espinosa Calabuig and L Carballo Piñeiro, Report on Spanish Good Practices (EUFam’s Project, 2016) 9 at www.eufams.unimi.it/wp-content/uploads/2017/01/EUFAMS-Spanish-report-on-good-practices. pdf. 29 Some of these problems have been diminished by the fact that the connections chosen by European PIL point to the lex fori in a very significant number of cases. In this regard, the predominance of the habitual residence over that of nationality in Rome III Regulation is positively assessed by the practitioners. However, some opinions pointed out that it would be advisable to include a reference to the law of the nationality of the spouses as obiter dicta for recognition purposes in their country of origin. Morocco’s law was specifically mentioned in view of the number of cases dealt with by the Spanish judges. See Report on Spanish Good Practices (n 28) 9.

The Impact of the Proof of Foreign Law  279

IV.  Pleading of Foreign Law Before the State Courts: The Role Played by the Judge and the Parties Once again, the nature of foreign law affects the role of the parties and the judge in the argument and application of that law. In countries where the legal status of foreign law is advocated, an active role of the judge is appreciated. This produces an ex officio application of foreign law. The parties are not bound to plead it in these countries (Austria, Belgium, Bulgaria or Czech Republic) although in some cases there are qualifications to be made. For example, in Germany, Article 293 of the Civil Procedure Code is not explicit, but it has been interpreted in the sense of an ex officio application of foreign law by the German judge without any pleading by the parties.30 In Italy there is a mixed attitude towards foreign law. On the one hand, Article 14 of the PIL Act establishes the legal nature of foreign law and therefore the judge’s obligation to apply it ex officio. On the other hand, it is observed that jurisprudence has not always treated it as a law. Thus, sometimes the Italian Supreme Court has treated it as fact in some cases, and it is the duty of the parties to plead its application and provide the judge with its content.31 In France (and similarly in the Scandinavian countries) the pleading of foreign law depends on two factors. The first is the willingness of the parties to plead foreign law, in which case the judge must apply it. The second is the nature of the litigation, in which foreign law is ‘available or not’, so that if the parties do not say anything and the rights in litigation are available to the parties, the judge will not be obliged to apply it.32 In countries where the factual condition of foreign law is advocated, there is an active attitude of the parties and a passive role of the judges, who will wait for the parties to claim foreign law. The United Kingdom is the most radical example.33 Judges have a completely passive role in the application of foreign law. Everything depends on the parties, because if they want it to be applied they must plead foreign law and provide the judge with its content. But the case will be treated as domestic. A similar approach exists in Ireland. In Spain, the mandatory character of the conflict-of-law rule makes it unnecessary for the parties to plead foreign law, but this entails some problems in practice, as explained before. Finally, in countries where the hybrid condition of foreign law is advocated, such as the Netherlands, Article 25 CPA is interpreted by the case law in the sense that the judge must apply its conflict rules and the law to which they refer ex officio without the parties having to plead it.34 30 See V Sangiovanni, ‘La conoscenza, línterpretazione e lápplicazione della legge straniera da parte del giudice civile Tedesco’ 35 RDIPP 913, 915–16. 31 See Queirolo (n 13) 624–34. 32 See S Fulli-Lemaire and D Rojas-Tamayo, ‘France’ in Esplugues, Iglesias and Palao (n 2) 187–89: I Pittaluga, ‘La prova del diritto straniero: evoluzione giursprudenziali in Francia e in Italia’ (2002) 38 RDIPP 675. 33 See Fentiman (n 17) 281; Fawcett and Carruthers (n 17) 111–13. 34 See S Geeroms, Foreign Law in Civil Litigation. a Comparative and Functional Analysis (Oxford, OUP, 2004) 49 ff.

280  Rosario Espinosa Calabuig

V. The Iura Novit Curia Principle Once again, the inconsistencies between theory and practice can be seen in the manifestation of the iura novit curia principle in relation to foreign law. There seem to be three factors that affect it: (a) The foreign law is applied in the framework of a state, judicial proceeding. Litigation rules have a necessary and sometimes unpredictable influence on how the court will treat foreign law in each case. (b) Whatever the options in favour of the ex officio application of foreign law, it should be taken into account that the judge is a person whose knowledge of foreign law – and time available – is limited. Besides that, generally the judge will not feel very comfortable with foreign law. (c) The role that is currently given to the parties in the EU regarding these types of proceedings.

In countries where foreign law has, in theory, a legal nature, the iura novit curia principle extends to foreign law and results in its application ex officio by judges (eg, Belgium, Portugal and Slovenia). However, in other countries, practice shows that this is not the case. In Austria, the principle is mitigated in practice, and the judge can apply the foreign law when he knows it, while not being forced to know it. The same happens in Bulgaria, the Czech Republic, France and Italy, whose legislation recognises the application of this principle to foreign law, but then the courts do not apply it because of the practical difficulties involved.35 In countries where foreign law has a factual nature, there is a passive attitude of the court regarding the pleading and proving of foreign law. Therefore, the principle of iura novit curia does not play a part with respect to foreign law. This is the case in Cyprus, Ireland, Malta and the United Kingdom. In Spain, judges do not have the duty to know the content of foreign laws.36 Thus, the iura novit curiae principle is exclusively confined to the knowledge of Spanish law. Furthermore, this rule is applied in a rigid way because even if the judge knows the content of a foreign law, the judge shall not apply it if it has not been properly proved by the parties.37 In countries where the foreign law has a hybrid nature, such as the Netherlands, the parties must neither plead nor prove the foreign law. In accordance with Article 25 CPA, the judges must apply the conflict-of-law rules and the foreign law ex officio.38 Therefore, the iura novit curia principle is fully applied. However, sometimes the right of the courts to request the parties provide information on the applicable foreign law is recognised.

35 For all these aspects see Esplugues, Iglesias and Palao, ‘General Report’ (n 2) 30–37. 36 As stated by Judgment of Spanish Supreme Court 797/2007 of 4 July 2007 (RJ/2007/4937) and others listed in it. According to J Forner Delaygua, Proof of the Facts in the Process: Aspects of Applicable Law (Barcelona, Bosch, 2006) 95, the ex officio application of foreign laws is unreasonable. 37 In general Azcárraga Monzonís (n 20) 331; Carballo Piñeiro (n 25) 485–90. 38 See Geeroms (n 34) 49.

The Impact of the Proof of Foreign Law  281

VI.  Ascertainment of the Content of the Foreign Law: The Role Played by the Judge and the Parties In general, most of the European systems pronounced themselves in favour of the ex officio application of the foreign law, but there are many particularities.39 In countries that advocate the legal nature of foreign law, in theory the judges apply it ex officio, and must determine its content. However, once again some points of detail must be made. For example, in Germany, according to Article 293 of the Civil Procedure Code, judges and doctrine advocate the legal nature of foreign law and its application ex officio. But, as in Austria, this interpretation is partially weakened and the iura novit curia principle does not actually cover foreign law. The courts will sometimes request assistance from the parties to investigate the content of the applicable foreign law. According to Article 139 of the Civil Procedure Code, the court must inform the parties about the applicable foreign law and they can plead and prove the content voluntarily. In practice, the German judge – like the Austrian judge – may have little time to determine the content of foreign law and will end up applying German – or Austrian – law.40 In countries with a factual nature, the determination and proof of the content of the foreign law corresponds with the parties.41 However, in countries such as the United Kingdom, preliminary proceedings undertaken by the High Court or the Crown Court or during an appeal regarding foreign law can be considered as evidence of the foreign law (according to the Civil Evidence Act 1972, in England and Wales). Finally, in countries with a hybrid nature such as the Netherlands, notwithstanding the obligation of the court to apply the foreign law ex officio and the absence of an obligation for the parties to prove its content, it is expected that they (the parties) will assist the court in the task of specifying it. Moreover, they can even be asked for help.42

VII.  The Means of Proving the Content of the Foreign Law In countries that categorise foreign law as legal in nature they regulate this point in different ways, independently of the obligation of the court to apply the foreign law ex officio and the application to it of the iura novit curia principle. Sometimes the state’s 39 For instance, in Germany, Art 293 of the Civil Procedure Code (J Kropholler, Internationales Privatrecht, 5th edn (Tübingen, Mohr Siebeck, 2004) 45–46. In Italy, Art 14 of the PIL Act (P Picone, ‘La prova del diritto straniero nella legge italiana di riforma del diritto internazionale privato’ in HP Mansel et al (eds), Festschrift für Erik Jayme (Munich, Sellier, 2004) 690–700. See Orejudo Prieto De Los Mozos (n 8). 40 It has been argued that in cases where the parties are of the same nationality as the applicable foreign law they could agree on the content of this applicable law, which would then be accepted by the judge. However, the majority opinion considers that the choice of the applicable law would only be possible if the relevant choice-of-law rule allows such a choice of law. More broadly see Hausmann (n 11) 2; Hartley (n 11) 275; I Bach and UP Gruber, ‘Austria and Germany’ in Esplugues, Iglesias and Palao (n 2) 104–05. 41 About the shortcomings of the systems based on the proof of foreign law by the parties (as occurs in Spain) see Carballo Piñeiro (n 25) 493–96. 42 See Fentiman (n 17) 295 ff; Fawcett and Carruthers (n 17) 113–14; Geeroms (n 34) 101–02.

282  Rosario Espinosa Calabuig legislation includes a general reference to the means available to find out the content of foreign law. For example, the courts of Estonia may use their knowledge of foreign law. According to Article 234 of the Civil Procedure Code, if this is not sufficient they can use the original sources of information and other acts with which to specify that law. Article 4 of the PIL Act, in addition to compelling the judge to determine the content of foreign law ex officio, guarantees the right to request assistance from the Ministry of Justice or Foreign Affairs, use experts and make a request for assistance from the parties.43 In Germany, Article 293 of the Civil Procedure Code allows the court to collect information through formal means of proof (Ministry of Justice)44 and any auxiliary source of information, including experts (eg, Professors of the Max Planck Institute for Comparative and International Private Law in Hamburg, although it has no obligation to give an expert opinion and can decline such an offer by the courts).45 In Italy, Article 15 of the PIL Act refers to international conventions, information from the Ministry of Justice or experts, as well as specialised institutions.46 In countries with a factual and legal hybrid condition of the foreign law similar means of proof are foreseen. For instance, in the United Kingdom, the parties must provide the court with all the content of foreign law through all kinds of means (‘all available means of evidence’47), mainly expert opinions given orally (such as in England and Wales). The judge will not intervene in the evidence, except in cases of conflict between the opinions of the experts. In states such as Lithuania, when foreign law is applied ex officio by the court, experts may be called upon as the Ministries of Justice or Foreign Affairs. If the parties are involved in the giving of evidence, they may use the means provided by Article 1.12(4) of the Civil Code. In the Netherlands, courts can ask the parties to help them, in which case the parties usually turn to experts. But the court is not bound to take this information into account.48 In the framework of EU Regulations like Rome III, the application of foreign law demanded by the conflict rules should be carried out ex officio by the authorities of the states. In this regard, Recital 14 warns of the existence of mechanisms that will provide authorities with the necessary information on the content of the foreign law. However, these mechanisms not only contribute to the knowledge of the state laws, but also raise doubts about the effective usefulness of the European Judicial Network (EJN) to which 43 V Nekrosius and V Vèbraité, ‘Baltic Countries’ in Esplugues, Iglesias and Palao (n 2) 122. 44 In particular, according to Art 293 of the Civil Procedure Code: ‘Law that is in force in a foreign country … must be proven only in so far as it is unknown by the court. In determining the content of foreign law, the court is not limited to evidence provided by the parties; it may also resort to any other source of information and may issue any order necessary to perform its investigation or use information gathered in the course thereof ’. In other countries, such as Romania, Art 7 of the Law 105/1992 points out that ‘… the content of foreign law is established by the Court through attestation obtained from the State authorities, through an expertise or in other adequate means. The party that summons a foreign law can be asked to prove the content of foreign law’. In Bulgaria, Art 43(1) CPIL states: ‘It may use the mechanisms as provided in the international treaties, to require information from the Ministry of Justice, or from another body, as well as to require expert statements or statements of specialized institutes …’. 45 Bach and Gruber (n 40) 106–07. 46 A Di Muro, ‘La ricerca e l’interpretazione del diritto straniero. La Cassazione di fronte agli artt. 14 e 15 della legge nº 218/1995’ (2003) Giur it 480. 47 England: s 4(1) Civil Evidence Act 1972. 48 Esplugues, Iglesias and Palao, ‘General Report’ (n 2) 52–53.

The Impact of the Proof of Foreign Law  283 the Regulation refers. The EJN is not sufficiently updated, nor does it contain all the aspects which may require the correct and sufficient application of a foreign law.49 Besides, implementation of Article 14 of the Rome III Regulation has been questioned in the Member States with more than one legal system, such as Spain.50 Lastly, it is important to state that all the EU Member States except Ireland are members of the London Convention 1968 and also of the Protocol of 1978, except Slovenia and Ireland. In addition, Spain is part of the Inter-American Convention of Montevideo 1979. Furthermore, the majority of the EU Member States also have bilateral conventions to obtain information on the content of foreign law. All Member States agree, however, on their limited functionality given the procedural complexity and limitations of foreign law obtained in this way. The use of the EJN or the European E-Justice website should encourage them to become a good alternative to the London Convention in certain cases. However, the use of this network is demonstrating failures in its implementation, as already mentioned.

VIII.  Proof of the Content of Foreign Law and Legal Assistance: Excessive Expenses In practice, the high costs resulting from the determination of a foreign law, whether from the investigation, its translation or other factors, discourage its application by the national courts; the parties often decide not to plead it, which adversely affects the functioning of the PIL system.51 In countries where foreign law is considered legal in nature, such as Portugal, there has been no response to this issue. In Germany, when the court asks the parties for help and experts are called in, costs seem to be covered, but on other occasions it does not seem possible. In Italy, they are in favour of covering these costs, but it is not expected they will from a legal point of view. 49 See Orejudo Prieto De Los Mozos (n 8) 480. According to the author, the correct application of the Rome III Regulation requires that the courts apply ex officio any foreign law (of states parties, Member States and third states) claimed by it. Unfortunately, they will not have adequate means to do so. As can be seen from the concern shown by the Commission in this regard: ‘… the proper functioning of the European judicial area sometimes requires a national court to apply the law of another Member State. The Union must consider how to avoid the disparity of current practices in this area’. See point 3.3 of the Communication from the Commission to the European Parliament and the Council, An Area of Freedom, Security and Justice Serving the Citizen, Brussels, 10 June 2009, COM(2009) 262 final. It is very possible that the (Spanish) authorities will continue to consider that the foreign law – even if its application is required by an EU Regulation – must be alleged and proved in trial by the parties, so that, in the event of any omission of this ‘duty’, they will continue to apply the lex fori, as it is deduced from judgments like the one of the Provincial Court of Valencia, 10 February 2009 No 85/2009. 50 During the EUFam’s Spanish Exchange Seminar celebrated in Valencia in October 2016, Art 14 of the Rome III Regulation was questioned given that Catalan law was being applied not by reference to this provision, but by mandate of the Catalan Autonomous Statute. Political reasons and the territoriality principle would explain this departure from the Regulation as one judge explained in the Seminar. However, it was acknowledged that Art 14 has to be mentioned as well while establishing the applicable law to internal conflicts of laws. In this vein, there was a mention of the specific problem of cross-border successions from foreigners who reside in a Spanish region with its own law, the issue being which law is applicable, that of the Spanish civil code or the special law of that territory. See Report on Spanish Good Practices (n 28). 51 Hartley (n 11) 275.

284  Rosario Espinosa Calabuig In countries of a factual or hybrid nature there are also interpretive disparities. For example, no assistance is provided to the parties in Cyprus, Ireland, Malta or the United Kingdom. In the Netherlands the costs are assumed to be covered by the court when it asks the parties for help in the investigation of foreign law.52

IX.  Practical Application of the Foreign Law The practical application of foreign law by state courts raises several issues of great importance on which there is no clear and uniform answer. In particular, the issues are: (a) how that foreign law is applied by the judge; (b) what happens in cases where the judge considers that the content of the foreign law has not been sufficiently determined; and (c) what happens if the judge refuses to apply the foreign law invoked by the conflict-of-law rule.53 There is a general objective in this field, that the application of a foreign law in the new forum should be the same as in its country of origin. From there, two trends emerge. On the one hand, it is interpreted that foreign law can be applied as if it were a true state law, taking into account the way in which it is interpreted in its country of origin. Countries that follow this example are Austria (although there is no clear information about it), Belgium, Bulgaria, Germany (possible gaps in foreign law can be covered by the judge) and Italy (which considers jurisprudence and doctrine). On the other hand, it has been interpreted that foreign law must be applied as such, that is, as a foreign law, although taking into account how it is interpreted in its country of origin. Equally problematic is the question of what happens in cases where the judge considers that the content of the foreign law has not been sufficiently determined. Sometimes the possible existence of a limitation period for the determination of the content of foreign law by the court may incline it to stop the search for a foreign law and instead apply the lex fori. The search for the meaning of foreign law and the way in which it is applied in its country of origin is usually what both – judges and parties – wish to determine. And this is not easy. Finally, another aspect to consider is what happens when the forum judge refuses to apply the foreign law. In general, it seems to be accepted that this will happen when there is a breach of the forum’s public policy. In some countries (for example, Hungary) other motives are mentioned, such as legal fraud in the conflict rules, the lack of determination of its content, or the lack of reciprocity.

X.  Possible Review by the Courts of the Application of the Foreign Law The possible review by the courts of the foreign law that has been designated as applicable is another question on which there have traditionally been interpretative doubts.

52 Esplugues, 53 For

Iglesias and Palao, ‘General Report’ (n 2) 58–59. all these issues see broadly Esplugues, Iglesias and Palao, ‘General Report’ (n 2) 63–74.

The Impact of the Proof of Foreign Law  285 In general, revisions are possible in all EU Member States, although there are differences in the reasons for revision (in principle, for breach of conflict-of-law rules, or for lack of or incorrect application of foreign law)54 and the competent authorities for this purpose. In general, different situations may be distinguished. Firstly, the courts may not have applied the conflict-of-laws rule or it was wrongly applied. Secondly, the courts have correctly applied the conflict-of-laws rule, but the foreign law has not been validly proved by the parties and lex fori is finally applied. Thirdly, the courts have correctly applied the conflict-of-laws rule, the parties have proved the content and validity of the foreign law, but lex fori is ultimately applied to the merits. Lastly, the courts have properly applied the conflict-of-laws rule, the foreign law has been validly proved by the parties and the courts have applied the foreign law, but the parties consider that it has been wrongly applied.55 In general, the provision of a system of appeals in this area is necessary to ensure the proper functioning of the state and EU PIL systems, as well as to guarantee full access to justice. All this also translates into greater legal certainty within the EU.

XI.  Application of the Foreign Law by Non-Judicial Authorities Few Member States expressly refer to non-judicial authorities (for instance, Estonia, with its 2002 PIL Act, and Spain, with Article 12.6 of the Civil Code), although de facto notaries and land registers, among others, apply foreign law in the EU with many nuances.56 As a general principle, the same rules for applying foreign law by judicial authorities are applicable. But in practice, a much more flexible position exists for the role played by these authorities when proving the content and validity of foreign law. The mandatory character of conflict-of-law rules certainly persists, but the iura novit curia principle and the requirement of proof of foreign law by the parties are approached

54 For example, in Austria by ‘insufficient or incorrect application of foreign law … as far as it raises a qualified legal question’ (s 502 Civil Procedure Code). 55 For example, in Spain all these situations have received different interpretations. On the one hand, Arts 207(1) and 455 CPA admit the possibility of a general appeal (recurso de apelación) of first instance decisions before the Provincial Court (Audiencia Provincial). This possibility is said to be applicable to all the situations previously described. On the other hand, Art 477(1) CPA states the possibility to challenge a previous decision rendered by a Provincial Court, if some conditions are met, through cassation before the Supreme Court (Tribunal Supremo). This is deemed to be clearly applicable to the first three above-mentioned situations. However, the fourth one is more controversial. Some authors believe that this challenge should also be granted in cases where the foreign law has not been properly applied, but others do not think the violation of a foreign law can be the object of cassation. See in particular AL Calvo Caravaca and J Carrascosa González, ‘Application of Foreign Law in Spain and the New Law on Civil Procedure’ (1999) 17 Anales de Derecho. Universidad de Murcia 302–03. For the negative view (also supported by the Spanish Supreme Court, Judgment of 15 July 1983, RJ 1983/4228), see PP Miralles Sangro, Application of Foreign Law in the Process and Judicial Protection (Madrid, Dykinson, 2007) 213. More broadly see C Azcárraga Monzonís (n 20) 335–36. 56 For instance, authorities in charge of the Civil Registry may apply foreign law when determining the capacity of foreigners to get married. Notaries may also apply foreign law when establishing the capacity of a foreigner to enter into a contract or to establish a last will and testament. International successions governed by foreign laws may also have consequences in the registration of real estate in land registries. And the same occurs with commercial registrars who deal with transactions that have foreign elements.

286  Rosario Espinosa Calabuig in a more flexible manner. In particular, the non-judicial authorities can use their own knowledge of foreign law to apply it, and they can also replace the parties if they know foreign law. In these cases, no proof by the parties is then required. However, no rules exist in the case that foreign law is not proved either by the authority or the parties. But it is possible that the prospective registration will be denied (by registrars) or the requested legal act will not be performed (by notaries).57



57 More

broadly Esplugues, Iglesias and Palao, ‘General Report’ (n 2) 79–89.

21 Public Policy FILIPPO MARCHETTI

I.  Public Policy: General Remarks A.  Public Policy One of the purposes of Private International Law is to open the legal system of the forum to the application of a foreign law to provide a good degree of coordination among legal systems.1 In particular, in the context of family law, the application of a foreign law may be guided by the appropriateness of taking into account cultural elements when addressing a dispute.2 As it is widely known, the standard, bilateral conflict-of-laws rules operate regardless of the content of the law that they identify. In other words, the relevant connecting factor will point to a certain legal system based on the characteristics of a predetermined factual element, and not necessarily to the best law.3 However, as one may infer, the actual content of the identified foreign law will often be different from that of the lex fori. When this happens, it may lead to the following, different results: (a) despite the differences, the application of the lex causae may produce an outcome that is identical to the one that would have been produced by applying the lex fori; (b) the application of the lex causae may lead to an outcome that is different, but still acceptable for the ruling court; or (c) the application of lex causae may lead to an outcome that is not only different, but also unacceptable for the legal order of the seised court. In this third case, general Private International Law provides the seised court with a safety net, ie, the possibility to raise a public policy exception to prevent the application of the foreign law.4 Indeed, every legal system has a core of political, economic, social and cultural values 1 cf F Salerno, ‘La costituzionalizzazione dell’ordine pubblico internazionale’ (2018) 54 RDIPP 259. 2 On the relevance of culture in this particular field, see C Campiglio, ‘Identità culturale, diritti umani e diritto internazionale privato’ (2011) 47 RDIPP 1029. 3 cf G Kegel and K Schurig, Internationales Privatrecht (Munich, Beck, 2004) 131 ff. 4 For a historical reconstruction of public policy (in French: ordre public. In Italian: ordine pubblico) in Private International Law, see F Berner, Kollisionsrecht im Spannungsfeld von Kollisionsnormen, Hoheitsinteressen und wohlerworbenen Rechten (Tübingen, Mohr Siebeck, 2017) 90–99.

288  Filippo Marchetti that characterises it, and that must be safeguarded to maintain internal coherence. To this end, every time a legal order allows the application of a foreign law, this leap in the dark is made with the safety net of the public policy clauses.5 The literature on the public policy exception is extremely wide and, for the purposes of this chapter, it will be necessary to limit its analysis to a few key elements and two key limitations to its use.6 It is appropriate to recall that public policy is characterised by two key elements, ie, its relativity and the deriving conceptual indefiniteness. The public policy concept varies in time and space. First of all, it is clear that p ­ olitical, economic, social and cultural elements vary over time, and that courts will assess the values that shall be considered undeniable when the dispute is examined. A clear example, which will be further developed later in this chapter, is that of divorce.7 In fact, it is only in the last 50 years that divorce has been positively regulated in several countries. This means that an institution that would have been considered unacceptable in many countries just a few decades ago, now is in fact widely accepted. Second, it is also simple to picture the relativity in space of public policy and, more specifically, why legal concepts that are acceptable in a certain legal community may not be acceptable in another. In the case of marriage, religious laws often cause concern in the courts when it comes to their compatibility with the core values of the forum. This further highlights the fact that the concept of legal community may sometimes extend beyond a national legal order.8 With regard to the functioning of the public policy exception, two key limitations must be recalled here. Most importantly, raising a public policy exception is unanimously considered as to be restricted to exceptional circumstances.9 This necessity arises because a too-frequent recourse to public policy – although it may prove appealing to courts, given the difficulty in gathering and applying a foreign, unknown law – would jeopardise coordination and undermine the very function of Private International Law.10 To further limit its application, EU Private International Law instruments require

5 Applying a foreign law has been described as a leap in the dark by L Raape, Internationales Privatrecht (Berlin, Vahlen, 1961) 90. Expression in German: Sprung ins Dunkle. 6 On public policy in the most recent literature, see ex multis, also for further references: O Feraci, L’ordine pubblico nel diritto dell’Unione europea (Milano, Giuffrè, 2012); W Wurmnest, ‘Ordre Public (Public Policy)’ in S Leible, General Principles of European Private International Law (Alphen aan den Rijn, Wolters Kluwer, 2016) 305; and, most recently, Salerno (n 1). 7 See section II.B of this chapter. 8 On this aspect, see Feraci (n 6) 11. On the relevance of cultural identity, see the legal analysis of Campiglio (n 2) 1029; on the political analysis of cultural clashes, with a potential reflection on the legal perception of values, see SP Huntington, The Clash of Civilizations and the Remaking of World Order (New York, Simon & Schuster, 1997). 9 Case C-145/86 Hoffmann v Krieg [1988] ECLI:EU:C:1988:61. cf P Vlas, ‘Public Policy in Private International Law and its Continuing Importance’ in The Permanent Bureau of the Hague Conference on Private International Law (eds), A Commitment to Private International Law: Essays in Honour of Hans van Loon (Cambridge, Intersentia, 2013) 621, 624. 10 On the issue of obtaining and interpreting a foreign law in general, see M Scerni, ‘Considerazioni in merito all’accertamento del diritto straniero’ (1967) 3 RDIPP 7. For consideration on this matter in practice, see J Verhellen, ‘Access to Foreign Law in Practice: Easier Said Than Done’ (2016) 12 JPIL 281.

Public Policy  289 the conflict with the public policy of the forum to be manifest,11 further raising the bar and requiring an adequate justification for resorting to the exception.12 Moreover, it is widely recognised that standard public policy clauses – as they are contained in most national and supranational legislation – provide a result-based applicability assessment.13 This means that it is not possible to raise a public policy exception when the identified lex causae merely contains elements that are unacceptable for the legal order of the forum. Instead, it is only possible to raise the exception when the results of its application lead to unacceptable results.14 For instance, in a case of a consensual divorce, a foreign law containing the institution of repudiation could be applied, because in this specific case the provisions on repudiation are not applied. On the contrary, as is widely accepted in the context of all EU Regulations,15 the identified legal order will be excluded in its entirety when the specific provisions that would come into relevance in the dispute would lead to unacceptable results. In other words, it is not possible to search the target legal order to find a second, acceptable rule, when the primary one would be in contrast with the public policy of the forum.

B.  Public Policy in the Determination of the Applicable Law vs Public Policy in the Recognition and Enforcement of Judgments: Analogies and Differences Most of the time, when referring to public policy, no distinction is drawn between the meaning of public policy in international civil procedural law and the meaning of the same in conflict of laws. This is well justified by the fact that the set of core values that determines the lack of recognition of a judgment is the same as the one that would prevent a court from applying a foreign, unacceptable law. Nonetheless, it seems appropriate to investigate whether differences may exist in the approach of a court evaluating compatibility with public policy in a dispute vis-à-vis in the context of the recognition of a foreign decision. With regard to public policy in the applicable law context, it is appropriate to recall that the compatibility of a foreign law with the ordre public of the forum is evaluated after the resort to a conflict-of-laws rule. In other words, courts are expected to apply the conflict-of-laws rule and, once the target is identified, evaluate whether the results of applying this law would produce unacceptable results. This aspect is often called a 11 See for example the language in the Regulations examined here (section II) or the Brussels Ia (Art 45(1)(a)) and IIa (Arts 22(a) and 23(a)) Regulations, as well as the Rome I (Art 21) and II (Art 26) Regulations. 12 cf A Dickinson, The Rome II Regulation: The Law Applicable to Non-Contractual Obligations (Oxford, OUP, 2008) 629; see also M Giuliano and P Lagarde, Report on the Convention on the Law Applicable to Contractual Obligations [1980] OJ C282/1, 38. 13 On the result-control purpose of public policy, see Wurmnest (n 6) 319; see also P Torremans (ed), Cheshire, North & Fawcett Private International Law (Oxford, OUP, 2017) 752. See also Italian Cass, 6 December 2002 No 17349 in (2003) Diritto e giustizia 396. 14 See Feraci (n 6) 8–9. 15 See section II of this chapter.

290  Filippo Marchetti negative function of public policy, which means that public policy works as a tool to prevent the application of an incompatible law.16 It is debated whether public policy has a positive function alongside its standard, negative one. In practice, this function would be exercised by overriding mandatory rules, which are rules that actively protect the core interests of the forum state.17 While some scholars still support the view of overriding mandatory rules as positive public policy,18 others tend to refuse such reading or to propose a slightly different perspective, such as to consider public policy as an ex-post control vis-à-vis the ex-ante control operated by overriding mandatory provisions.19 The reason of the ongoing debate on the negative-positive approach to public policy may be found in the different nature of public policy and overriding mandatory rules: the first is a set of principles, while the second is a category of rules.20 Therefore, it is at least difficult to argue that they fall into the same category of public policy or that they are simply a different form of public policy. Overriding mandatory provisions are clearly related to public policy, in the sense that they aim at preserving a similar set of core values of their legal order, but they do not necessarily fall into this category. In fact, they are neither indefinite nor relative: they are well defined, since they are codified legal rules, and they are not subject to public policy’s relative character. The fact that the assessment of the overriding mandatory nature of a certain rule is done by courts and that no rule is clearly flagged as an overriding mandatory rule does not mean that they are indefinite: they are simply complex to identify. This chapter does not address the issue of public-policy exceptions in the free circulation of judgments, which is analysed elsewhere in this volume.21 Nonetheless, it is appropriate to briefly mention that in this context, public policy is usually conceptualised as substantive public policy and procedural public policy. The first one is usually a mere mirror of public policy in the applicable law context,22 but is widely recognised as a concept that can hardly be applied in practice, especially because of the ubiquitous prohibition against reviewing the judgment as to its substance.23 16 Pfeiffer refers to a shield, as opposed to the sword represented by overriding mandatory provisions. See T Pfeiffer, ‘Private International Law’ in R Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford, OUP, 2011) 459, 466. 17 Or ‘normes d’application nécessaire’ as defined by E Vitta, ‘Cours general de droit international privé’ (1979) 162 Collected Courses of the Hague Academy of International Law 118 ff. 18 See for instance B Hess and T Pfeiffer, ‘Interpretation of the Public Policy Exception as referred to in EU Instruments of Private International and Procedural Law’ (2011) Study for the European Parliament 28, available at europarl.europa.eu/thinktank. 19 On the debate regarding overriding mandatory rules, see F Mosconi and C Campiglio, Diritto internazionale privato e processuale (Milano, UTET, 2015) 279 ff; T Treves, ‘Art. 17 (Norme di applicazione necessaria)’ in F Pocar (ed), Commentario del nuovo diritto internazionale privato (Padova, Cedam, 1996) 84, 87 ff. 20 cf T Ballarino, Diritto internazionale privato (Padova, Cedam, 1999) 192. On this matter, see also G Sperduti, ‘Norme di applicazione necessaria e ordine pubblico’ (1976) 12 RDIPP 469, 473. 21 See in this volume E D’Alessandro, ‘Exceptio Rei Judicatae’ (Ch 16) and T Pfeiffer, M Escher and J Wittmann ‘The Fragmentation of the Recognition and Enforcement Regimes’ (Ch 22). 22 cf M Renner, ‘Ordre public und Eingriffsnormen: Konvergenzen und Divergenzen zwischen IPR und IZVR’ in J von Hein and G Rühl, Kohärenz im Internationalen Privat- und Verfahrensrecht der Europäischen Union (Tübingen, Mohr Siebeck, 2016) 359, 368. 23 See in this volume D’Alessandro (n 21) and Pfeiffer, Escher and Wittmann (n 21). See also Hess and Pfeiffer (n 18). With regard to the prohibition on reviewing a judgment as to its substance, see for instance Art 26 of the Brussels IIa Regulation and Art 42 of the Maintenance Regulation.

Public Policy  291 On the contrary, procedural public policy is a relevant concept in the recognition and enforcement of judgments. In fact, while the EUFam’s case law on public policy in the context of the applicable law amounts to three cases24 and the one on substantive public policy in the context of the recognition and enforcement of judgments amounts to five cases,25 the case law on procedural public policy as a potential ground to refuse recognition or enforcement of a judgment is over 20 cases.26 In this context, the court evaluates whether the procedural aspects of the foreign proceeding may result in an unacceptable outcome for the requested legal order.27 This may occur due to various reasons, including the violation of the rights of defence or the insufficient or misleading information about the proceeding. In essence, the difference between public policy in the applicable law and that in the recognition and enforcement context may be best described by elaborating on Thomas Pfeiffer’s ‘shield and sword’ example.28 In fact, public policy in the context of the recognition and enforcement of foreign judgments operates defensively to prevent unacceptable values from entering the requested legal order. On the other hand, public policy in the conflict-of-laws rules seems to work more as an active, selective filter, as it tends to prevent specific elements of the lex causae producing unacceptable results. Therefore, though it is possible to analyse the two aspects jointly, it seems appropriate to conclude that the perspective when dealing with public policy in the applicable law visà-vis recognition and enforcement contexts contains underlying conceptual differences.

C.  A European Public Policy It is a long-debated question whether public policy is a purely-national concept, or is transforming into a European concept. German scholars in particular debate on the national vis-à-vis European public-policy concepts, opposing scholars who support a purely national approach29 to those who argue that the CJEU’s case law may indeed function as a supplementary, corrective source of public-policy principles.30 It may well be argued that the most appropriate stance is a mixed one. According to the CJEU, Member States are free to determine the content of their public policy.31 24 Trib Milano, 24 March 2014, ITF20140524; Cour de cassation, 8 July 2015 No 14-17880, FRT20150708; OLG Hamm, 7 May 2013, 3 UF 267/12, DES20130507. 25 App Bologna, 18 November 2014, ITS20141118; Trib Firenze, 9 March 2015, ITF20150309; OLG Stuttgart, 1 December 2014, 17 UF 150/14, DES20141201; OLG Frankfurt, 31 December 2015, 4 UF 268/15, DES20151230; Trib Belluno, 5 November 2010, ITF20101105. 26 See in this volume D’Alessandro (n 21) and Pfeiffer, Escher and Wittmann (n 21). 27 On these matters, see Case C-7/98 Krombach v Bamberski [2000] ECLI:EU:C:2000:164; Case C-394/07 Marco Gambazzi v DaimlerChrysler Canada Inc. and CIBC Mellon Trust Company [2009] ECLI:EU:C:2009:219. 28 See n 26. 29 See inter alia D Martiny, ‘Die Zukunft des europäischen Ordre Public im Internationalen Privat- und Verfahrensrecht’ in M Coester et al (eds), Privatrecht in Europa – Vielfalt, Kollision, Kooperation (Munich, Beck, 2004) 523, 531. 30 cf J Basedow, ‘Die Verselbständigung des europäischen Ordre Public’ in M Coester et al (eds), Privatrecht in Europa – Vielfalt, Kollision, Kooperation (Munich, Beck, 2004) 291, 318. 31 Case C-7/98 Krombach v Bamberski (n 27) para 22; Case C-38/98, Renault SA v Maxicar SpA and Orazio Formento [2000] ECLI:EU:C:2000:225 para 27; Case C-420/07 Apostolides v Orams [2009] ECLI:EU:C:2009:271 para 56.

292  Filippo Marchetti At the same time, EU public-policy rules clearly refer to the public policy of the forum.32 These elements may be interpreted as an indirect point in favour of a national perception of public policy. Nevertheless, it is undeniable that European law principles may impact the notion of public policy as well. These principles derive from primary and secondary EU law sources, as well as from European, non-EU law, such as from the ECtHR’s case law.33 In this regard, some scholars argue that ‘one can witness a certain enrichment of the formerly purely national public-policy doctrine, which is supplemented and given a European gloss’,34 while others hypothesise the existence of a set of clearly defined European public-policy principles.35 Most probably, the paradigm of this debate may be shifted into a conflict–synergy duality. Indeed, this debate would have highest relevance if an actual, conceptual conflict existed between a national and a European public policy. However, this is not necessarily an issue of legal pluralism, but more probably an issue of legal hierarchy. In fact, thanks to the principle of supremacy of EU law, it would be difficult to argue that national principles and values that are incompatible with EU law could be used as public-policy principles of the Member State. In fact, it may be argued that principles and values that are enshrined in supranational primary and secondary legislation may serve as a parameter for adjusting the national perception of public policy, rather than replacing it. In this sense, judgments rendered in other Member States may start concurring to create a harmonised, coordinated perception of public policy.36

D.  Public Policy: An Essential Tool or an Avoidable Obstacle to Coordination? Over the years, several scholars proposed amendments to the standard public-policy doctrine in order to limit the extent of its use by national courts in the EU. In fact, it is undeniable that an extensive use of this clause may lead to a contraction of the legal orders, eventually jeopardising the purpose of Private International Law. Three options have been proposed so far: (a) the removal of public policy for intra-EU cases; (b) the softening of the same; and (c) the introduction of the condition that such a clause is only considered if the parties so request.37

32 See for instance Art 26 of the Rome II Regulation. 33 A key example is the Case C-126/97 Eco Swiss [1999] ECLI:EU:C:1999:269, in which the CJEU ruled in a case regarding the interaction of EU law with national civil procedural law. In that case, a Dutch court requested the Court in Luxembourg to decide whether an arbitration clause waiving an EU competition law rule would be considered against public policy. Indeed, as per standard practice, a clause waiving Dutch competition law would have not been considered as conflicting with Dutch public policy. In that circumstance, the Court ruled that an arbitration clause that waives the applicability of EU competition law (specifically, Art 81 of the EC Treaty) should be considered as conflicting with public policy, as it undermines the functioning of the internal market. Specifically on Eco Swiss, see LG Radicati di Brozolo, ‘Arbitrato, diritto della concorrenza, diritto comunitario e regole di procedura nazionali’ (1999) Riv arb 665. 34 cf Wurmnest (n 6) 316. 35 cf Feraci (n 6) 402 ff. 36 On the influence of European law, cf R Hausmann, Internationales und Europäisches Familienrecht (Munich, Beck, 2018) 114. 37 See the broad overview given by Wurmnest (n 6) 309 ff.

Public Policy  293 In the light of the current situation, none of the three proposed solutions seems to work and family law is a good example. The removal of public policy seems not to make sense in the current EU setting.38 In fact, during the negotiations for the Maintenance Regulation, harsh criticism followed a bold proposal of the Commission on this clause.39 At the same time, the Rome III Regulation has been adopted as an enhanced cooperation, which is a good example of the low degree of consensus among Member States in these matters.40 Even the argument in favour of softening the interpretation of existing public-policy clauses in case of intra-EU cases seems at least debatable.41 Indeed, the argument that courts should assess the opportunity to refuse applying a foreign law based on its intraor extra-EU status is not convincing for obvious reasons of procedural efficiency. In fact, public policy is already left to the substantial discretion (or sensibility) of courts, and creating a differentiated approach only increases fragmentation and the risk of imbalances of treatment. Finally, the idea that public policy may be considered by the court at the request of a litigant is also not convincing. This proposal was advanced by the European Parliament in the first reading of the Rome II proposal.42 As correctly pointed out by others, this is not yet a desirable outcome.43 This is for several reasons, including the fact that the litigating parties will often try to raise this exception when litigating sensitive aspects, especially in family matters. At the same time, the opposite case could exist in which one of the spouses, due to various reasons, including fear or culture-derived insecurity,44 decides not to object to the public-policy compatibility of the applicable law, preventing the court from being able to apply the public-policy clause even in cases in which a clear conflict exists. Finally, if one adheres to the traditional public policy definition, ie, the core of fundamental values of a legal order, then the idea that the protection of a core value of the legal order can be pursued by the judiciary only at the request of a litigant is at least controversial. Nonetheless, the ongoing need for public-policy clauses will be further argued below, with particular focus on the legislative history of the current family law Regulations and on the existing case law.

38 The EU procedural Regulations, such as the European Small Claims Procedure Regulation and the European Enforcement Order Regulation do not contain public-policy clauses. Nevertheless, it is worth noting that they create an additional, EU-wide procedure in very specific matters. Therefore, public-policy clauses not only seem less necessary, but could seriously jeopardise the functioning of the system, as opposed to the more limited effect of public-policy exceptions contained in more broad-ranging instruments such as the Rome and Brussels Regulations. 39 The proposal provided for the inapplicability of the public-policy clause in intra-EU cases. See section II.A. of this chapter. 40 See section II.B. of this chapter. 41 This proposal regards the differentiated use of public policy in intra-EU vis-à-vis extra-EU cases. Regarding the different, but still ‘softened’ French doctrine of the ordre public attenué, see Feraci (n 6) 17 ff. See also, in general, Mosconi and Campiglio (n 19) 272 ff and 367ff. 42 On this, see Dickinson (n 12) 629 ff. 43 See A Dickinson, ‘Third-Country Mandatory Rules in the Law Applicable to Contractual Obligations: So Long, Farewell, auf Wiedersehen, Adieu?’ (2007) 3 JPIL 53, 60 ff. 44 For instance, this could be the case of women belonging to cultures in which they are discriminated.

294  Filippo Marchetti

II.  Public Policy Clauses in EU Private International Law Instruments in Family Matters To fully understand the existing landscape with regard to public policy in family conflictof-laws instruments, it is appropriate to briefly assess the content of the public-policy clauses contained in such instruments. Curiously, despite sharing a common core, the following three instruments present subtle, yet relevant differences.

A. Maintenance In the EU, the law applicable to maintenance obligations is determined pursuant to the Maintenance Regulation.45 However, the Regulation itself does not contain conflict-oflaws rules, but instead operates a referral to the 2007 Hague Maintenance Protocol.46 While the content of the public-policy clause in the 2007 Hague Maintenance Protocol is quite standard,47 the legislative history of the Regulation is a strong argument in favour of the ongoing relevance of public policy. Indeed, the first proposal for a Regulation on maintenance, which dates back to 2005, included a very peculiar public-policy clause, which would have represented a capital advancement of the public-policy doctrine in the EU. The text of Article 20 of the proposal provided that: The application of a provision of the law designated by this Regulation may be refused only if such application is manifestly incompatible with the public policy (‘ordre public’) of the forum. However, the application of a provision of the law of a Member State designated by this Regulation shall not be refused on such a ground.48

This rule would have prevented courts from raising the public-policy exception if the conflict-of-laws rules of the proposed Regulation had identified an EU Member State

45 For an analysis of this Regulation, see F Pocar and I Viarengo, ‘Il regolamento (CE) n. 4/2009 in m ­ ateria di obbligazioni alimentari’ (2009) 45 RDIPP 805; M Castellaneta and A Leandro, ‘Il regolamento (CE) n. 4/2009 relativo alle obbligazioni alimentari’ (2009) NLCC 1051; FC Villata, ‘Commento al regolamento (CE) n. 4/2009 del Consiglio del 18 dicembre 2008 relativo alla competenza, alla legge applicabile, al riconoscimento e all’esecuzione delle decisioni e alla cooperazione in materia di obbligazioni alimentari’ in F Pocar and MC Baruffi (eds), Commentario breve ai Trattati dell’Unione europea (Padova, Cedam, 2014). For an overview of the case law on this Regulation see national reports of various authors in P Beaumont, C Trimmings and B Yüksel, Cross-Border Litigation in Europe (Oxford, Hart Publishing, 2017) 79–462. With specific regard to Italy, see I Viarengo, ‘Rapporto sull’applicazione in Italia del regolamento (CE) n. 4/2009 del 18 dicembre 2008 relativo alla competenza, alla legge applicabile, al riconoscimento e all’esecuzione delle decisioni e alla ­cooperazione in materia di obbligazioni alimentari’ in S Bariatti, I Viarengo and FC Villata (eds), La ­giurisprudenza italiana sui regolamenti europei in materia civile e commerciale e di famiglia (Milano, Wolters Kluwer, 2017) 405. 46 On the protocol, see A Bonomi, ‘The Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations’ (2008) YBPrIL 333; A Malatesta, ‘La convenzione e il protocollo dell’Aja del 2007 in materia di alimenti’ (2009) 45 RDIPP 829. 47 Text: ‘Article 13 – Public policy: The application of the law determined under the Protocol may be refused only to the extent that its effects would be manifestly contrary to the public policy of the forum’. 48 Proposal for a Council Regulation on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, COM/2005/0649.

Public Policy  295 law, while the standard public-policy clause would have remained in force with regard to the laws of third countries.49 Despite its courage, this proposal did not meet with approval of scholars.50 The chapter on the applicable law was removed entirely from the proposal when the EU decided to opt in favour of the referral to the 2007 Hague Maintenance Protocol. Nonetheless, before removing it entirely, subsequent drafts of the Maintenance Regulation did not feature this restriction51 and, given the presence of public-policy exceptions both in the Rome III Regulation and in the Succession Regulation, it seems safe to argue that this policy path is currently not pursued. With regard to the courts’ practice in the application of the public-policy clause ex Article 13 of the 2007 Hague Maintenance Protocol, only one case may be found in the EUFam’s case law database,52 which however provides a good didactic overview of the functioning of the public-policy exception with regard to the applicable law. The case involved a couple who got married in Germany and, at that time, signed a marriage contract governed by German law. This contract excluded any compensatory allowance in case of divorce. The couple divorced in France, and a request for compensatory allowance was filed by the ex-wife. While the French courts of first and second instance did not raise the public-policy exception, the Supreme Court overruled the judgment, arguing that the lower courts failed to assess whether the effect of the application of a foreign law (namely German law, which excludes compensatory allowances) in French courts would represent a manifest, unacceptable conflict with French public policy. This case law, although scarce, offers a tangible example of why the Commission’s first proposal to remove public-policy exceptions in intra-EU cases was premature. While it is true that the ultimate goal of the unification process of Private International Law is to have full harmony in cross-border disputes, it is also true that, lacking a unification of substantive law, this process cannot be forcefully accelerated.

B. Divorce i.  Articles 12 and 10 of the Rome III Regulation With regard to divorce and legal separation, the Rome III Regulation provides for uniform conflict-of-laws rules for the determination of the applicable law in the area

49 In fact, under draft Article 18, the proposed Regulation would have had universal application, ie, the law identified by its conflict-of-laws rules would have been applicable regardless of it being a Member State’s law or a third-State law. 50 See THM Deboer, ‘Unwelcome Foreign Law: Public Policy and Other Means to Protect the Fundamental Values and Public Interests of the European Community’ in A Malatesta, S Bariatti and F Pocar (eds), The External Dimension of EC Private International Law in Family and Succession Matters (Padova, Cedam, 2008) 295, 308. See also the articulated critic of G Rühl, ‘Rechtswahlfreiheit im europäischen Kollisionsrecht’ in D Baetge et al (eds), Die richtige Ordnung (Tübingen, Mohr Siebeck, 2008) 187, 207–08. 51 Deboer (n 50) 308. 52 Cass, 8 July 2015 No 14-17880, FRT20150708. The EUFam’s database is available for consultation at www.eufams.unimi.it. For additional accuracy, cross-checking research has been carried out on the EUpillar database, which however does not contain any case on Art 13. The EUpillar’s database is available for consultation at w3.abdn.ac.uk/clsm/eupillar.

296  Filippo Marchetti of freedom, security and justice.53 After the criticism that followed the proposal for a Maintenance Regulation, the Commission opted for a standard public-policy clause in the proposal for a Regulation on the law applicable to divorce.54 This was then maintained, and Article 12 of the Rome III Regulation still contains the same standard public-policy clause, providing that a provision of the law designated by the conflictof-laws rules of the Regulation may be refused only if such application is manifestly incompatible with the public policy of the forum.55 Therefore, Article 12 of the Rome III Regulation will come into relevance regardless of the fact that the identified, foreign law is a Member State’s law or a third State’s law.56 An interesting addition to this traditional approach is the content of Recital No 25, which provides that courts should not be able to raise the public-policy exception vis-à-vis another State when to do so would be contrary to the EU Charter of Fundamental Rights.57 This addition seems to match the approach that was proposed in the Maintenance Regulation if one considers – as done above in this chapter – that Member States’ compliance with EU law implies a synergy between national and a European public policy. In fact, although no distinction is drawn in Recital No 25 regarding the nature of the dispute (intra-EU or not), this provision is a clear statement of the fact that common principles are regarded as core values in the entire Union. Article 10, as well, can be traced back to the general framework of public policy, in that it provides for the applicability of the lex fori where the foreign applicable law ‘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’.58 On this rule, a few brief observations can be made. First of all, it is undeniable that such a provision aims at protecting values that the EU, and consequently the participating Member States, consider as core values of the legal order, ie, the favor divortii and the prohibition of gender-based discrimination in divorce matters.59 Therefore, it is true that it is similar to the public-policy exception, but its imperative character places it in a different position as opposed to Article 12.

53 For an analysis of this Regulation, see I Viarengo, Il Regolamento UE sulla legge applicabile alla separazione e al divorzio e il ruolo della volontà delle parti (2011) 47 RDIPP 60; P Franzina (ed), ‘Regolamento UE n. 1259/2010 del Consiglio del 20 dicembre 2010 relativo all’attuazione di una cooperazione rafforzata nel settore della legge applicabile al divorzio e alla separazione personale’ (2011) NLCC 1435; UP Gruber, ‘Scheidung auf Europäisch – die Rom III-Verordnung’ (2012) IPRax 381; S Corneloup, Droit européen du divorce (Paris, Lexis Nexis, 2013); C Raupach, Ehescheidung mit Auslandsbezug in der Europäischen Union (Tübingen, Mohr Siebeck, 2014). 54 See Art 7 of the ‘Proposal for a Council Regulation Implementing Enhanced Cooperation in the Area of the Law Applicable to Divorce and Legal Separation’ COM(2010) 104. 55 On this article, see N Joubert, ‘Article 12 – Ordre Public’ in Corneloup (n 53) 615. 56 cf Raupach (n 53) 220. 57 See Recital No 25 of the Rome III Regulation. 58 On this provision, see extensively A Leandro, ‘Art. 10 – Applicazione della legge del foro’ in Franzina (n 53) 1435, 1503. Often, the limitation of paragraph 2 of this article will be applied to disapply Islamic law, but also Jewish law can sometimes prove problematic. On Islamic law, see HG Ebert, Das Personalstatut arabischer Länder (Frankfurt am Main, Lang, 1996). On its application in Western courts, see E Giunchi (ed), Muslim Family Law in Western Courts (London, Routledge, 2014). On Jewish law, see W Homolka, Das jüdische Eherecht (Berlin, De Gruyter Recht, 2009). 59 cf P Franzina, ‘The Law Applicable to Divorce and Legal Separation under Regulation (EU) No. 1259/2010 of 20 December 2010’ (2011) 3 CDT 85, 98.

Public Policy  297 In fact, the rule under Article 10 does not appear indefinite, let alone relative. It prescribes two very specific cases and demands the application of the lex fori when these are verified. Therefore, it seems inappropriate to consider this as a traditional public-policy clause.60 However, it does not fall in the category of the overriding mandatory provisions. Indeed, Article 10 requires an evaluation of the content of the foreign law.61 In conclusion, it may be argued that this rule serves the same purposes as public policy and overriding mandatory provisions, but does not fall in either category. Possibly, it may be catalogued as a tertium genus, close to a positive type of public policy. It must be kept in mind that the Rome III Regulation enacts an enhanced cooperation. The fact that the EU did not succeed in enacting a standard Regulation in this field is a significant alarm bell that testifies how delicate this field of the law is. In fact, it is the symptom of a highly differentiated legal and political perception of the institution of divorce in Europe, with some Member States more open to simple divorces and others opposing it.62 A relevant question regarding Article 10 is whether this provision requires in abstracto or in concreto evaluation of the foreign law. A brief glance into this issue is given by Advocate General Øe in the Sahyouni case.63 Though the Court eventually decided not to pronounce themselves on the interpretation of Article 10,64 the Advocate General proposed an interpretation of this Article as to require an in abstracto evaluation of the foreign law. This interpretation, which conflicts with the view of some Member States,65 would lead to a potential closure of the Union’s legal order to a vast group of legal systems. In fact, this would set Article 10 further apart from traditional public policy, and transform this rule into a wall, rather than a filter. This interpretation, which also conflicts with the view of some scholars,66 seems to be difficult for the CJEU to uphold. In fact, despite the fact that Article 10 protects indisputably fundamental values of the Union’s legal order, such as equality between spouses and the prohibition of gender-based discrimination, in abstracto evaluation of the foreign law would unnecessarily limit the flexibility of the system even prior to the standard, public-policy considerations. In any case, as interesting as this debate may seem, it still has less traction in the case law landscape. In fact, in practice, cases of application of the public-policy clause to prevent the application of a foreign law are scarce. Most of the cases regard legal

60 Raupach defines it as a special public-policy clause (‘spezielle ordre public klausel’). See Raupach (n 53) 209. 61 In German ‘Inhaltskontrolle’: Gruber (n 53) 390. 62 cf Wurmnest (n 6) 310. The Article 10 clause is often referred to as the ‘Malta Clause’, as it was designed – among other things – to equip courts with a rule to address the problem of lack of this institution in the Maltese order in those cases in which the connecting factors of Arts 5–8 of the Regulation would have pointed to Malta. See T Helms, ‘Reform des internationalen Scheidungsrechts durch die Rom III-Verordnung’ (2011) FamRZ 1765, 1771. 63 See the Opinion of the Advocate General in Case C-372/16 Sahyouni [2017] ECLI:EU:C:2017:686. 64 The Sayouni case regarded private divorces and, due to the CJEU’s interpretation of the Rome III Regulation as to exclude private divorces from its scope of application, nothing was said regarding the compatibility of the law applicable to the analysed private divorce with Art 10. See Case C-372/16 Sahyouni (n 63). 65 See Case C-372/16 Sahyouni, Advocate General’s Opinion (n 63) para 72. 66 cf Wurmnest (n 6) 319 ff.

298  Filippo Marchetti separation as a necessary step to obtain a divorce. It is generally accepted that there is no violation of the public policy if the foreign divorce can be obtained without a previous period of separation, even if it happens in a Member State whose law requires a period of separation, as Italy.67

ii.  Islamic Repudiation and the Rome III Regulation Islamic repudiation is a relevant topic when assessing the degree of resilience of publicpolicy exceptions in Private International Law, and the literature addressing this institution of Islamic law is vast.68 The approach of national courts on this matter mainly regards the recognition and enforcement of foreign repudiation and is not uniform. However, it must be noted that in these cases it is rare to see the Brussels IIa Regulation applied, because Member States’ judgments applying a talaq are extremely scarce and non-Member States’ judgments are not subject to the uniform system. Therefore, it seems interesting to report some national case law applying national conflict-of-laws rules. In Italy, the case law is strongly against the recognition of foreign repudiations. In fact, all obtained national cases reject the recognition of foreign repudiation decisions.69 Similarly, French courts also tend to be strict in assessing public-policy compatibility of talaq.70 An interesting approach is that of German courts, which historically adopted a more diversified, partially more-flexible approach to repudiation cases.71 While some courts tend to refuse the recognition of foreign talaq judgments based on the same grounds

67 Cass, 25 May 2004 No 10378 in (2005) 41 RDIPP 129; and Cass, 25 July 2006 No16978 in (2007) 43 RDIPP 432; Trib Belluno, 6 March 2009, ITF20090306; Trib Trento, 28 April 2011, ITF20110428; Trib Roma, 25 July 2014, ITF20140725; Trib Firenze, 9 March 2015, ITF20150309. However, some rare judgments can still be encountered, stating that a law that does not allow for separation is contrary to public policy. See Trib Milano, 24 March 2014, ITF20140524; Audiencia Provincial Barcelona, 12 November 2013 No 777/2013, ESS20131112. 68 See, ex multis, R el-Husseini Begdache, Le droit international privé français et la répudiation islamique (Paris, LGDJ, 2002); R Baratta, Scioglimento e invalidità del matrimonio nel diritto internazionale privato (Milano, Giuffrè, 2004); M Rohe, ‘The Application of Islamic Family Law in German Courts and its Compatibility with German Public Policy’ in J Basedow and N Yassari, Iranian Family and Succesion Laws and their Application in German Courts (Tübingen, Mohr Siebeck, 2004) 19; K Alidadi, ‘The Western Judicial Answer to Islamic Talaq: Peeking through the Gate of Conflict of Laws’ (2006) Journal of Islamic and Near Eastern Law 1; C Campiglio, ‘Il diritto di famiglia islamico nella prassi italiana’ (2008) 44 RDIPP 43; R Clerici, ‘La compatibilità del diritto di famiglia mussulmano con l’ordine pubblico internazionale’ (2009) Fam dir 197; L Ascanio, ‘Equivoci linguistici e insidie interpretative sul ripudio in Marocco’ (2012) 48 RDIPP 573. 69 See App Milano, 17 December 1991 in (1993) RDIPP 108, on which see the brief comment of F Mosconi and C Campiglio (n 19) 275 ff; Trib Milano, 11 March 1995 in (1996) 32 RDIPP 129. Most of the time, these decisions are rejected on grounds of public policy as they conflict with values such as equality, or lack of judicial supervision, or lack of legal check and balances. On this, see Campiglio (n 2) 1049 ff. 70 See, for instance, Cour d’Appel de Paris, 20 November 2008, n. 04/05258, FRS20081120a. This was the case of two spouses habitually resident in France. In 2007, the husband filed and obtained divorce in their common home country, Algeria. Under the Algerian Family Law, the man can unilaterally end the marriage. Both the Court of First Instance and the Court of Appeal refused to recognise the Algerian judgment, since this would conflict with Article 14 ECHR and with French public policy. 71 On this Rohe (n 69) 28 ff.

Public Policy  299 as other countries’ courts,72 other courts tend to be more flexible and perform caseby-case evaluations to ensure that the effects of recognising a foreign judgment or of applying a law containing talaq is acceptable for the German legal order. This approach is to be welcomed, because it strongly matches the very purpose of public-policy. For instance, several courts ruled in favour of the application of talaq when the prerequisites of a German divorce were also fulfilled.73 In other words, courts did not give excessive weight to the label and the standard requirements of repudiation but treated it as a commencement of a divorce proceeding as long as the requirements of German law – such as having lived apart for over a year or adequate notification of the other spouse about the proceeding – were fulfilled.74 With regard to the limitation of access of women to the talaq or divorce institutions, and in the context of the applicable law, German courts ‘corrected’ the inequality of talaq by allowing the wife to seek a divorce under German law regardless of the applicable family law as determined pursuant to the German conflict-of-laws rules.75 With regard the application of the Rome III Regulation, an interesting decision involving talaq was made by Oberlandesgericht Hamm in 2013.76 This case regarded two Iranian citizens who got married in Iran in 2009. Later, the wife acquired German nationality. They had a daughter, separated in 2011 and resided in Germany. The Iranian marriage certificate included a few conditions under which the wife could file for divorce, such as six months of no maintenance payments and poor behaviour of the husband towards the wife. The wife filed for divorce in 2012, based on the second condition. The main centre of the decision here regarded the law applicable to divorce. Indeed, no choice was made by the parties during the hearings. Nonetheless, the German court still applied Article 5 of the Rome III Regulation stating that the marriage certificate could be interpreted as an implied choice-of-law agreement in favour of Iranian law. In fact, the conditions agreed upon are the same conditions provided by Articles 1133, 1134 and 1138 of the Iranian Civil Code.77 Even though the parties did not explicitly choose Iranian law, the wording of the marriage certificate was a strong indication of their will for it to be regulated by Iranian law. The Iranian Civil Code, at Article 1133, provides that ‘A man can divorce his wife whenever he may wish to do so’, providing for a manonly talaq.78 However, the German court did not take into consideration this limitation, and allowed the wife to pronounce talaq in court during two hearings, one of which was in the presence of three male witnesses,79 as prescribed by Articles 1133 and 1134 of the Iranian Civil Code, and the divorce became effective. The court did not analyse the 72 Namely, the equality between spouses: see, for instance, Amtsgericht Frankfurt am Main, 09 August 1988, 35F4153/87 (1989) NJW 1434. See also the extreme rigidity of Kammersgericht Berlin, 27 November 1998 in (2000) IPRax 126, which declined jurisdiction in a divorce-by-talaq dispute stating that a German court could not take part in such proceedings. 73 See for instance Amtsgericht Hamburg, 27 May 1999 in (2000) FamRZ 958. 74 cf Rohe (n 69) 28. 75 cf OLG Köln, 16 May 2001, 27 WF 104/01 in (2002) FamRZ 166, and OLG Zweibrücken, 16 November 2001, 2 UF 80/00 in (2002) NJW Rechtsprechungs-Report Zivilrecht 581. 76 Oberlandesgericht Hamm, 7 May 2013, 3 UF 267/12, DES20130507. 77 See MA Ṭālaqānī (ed), The Civil Code of Iran (Littleton, Rothman, 1995) 165 ff. On Iranian law in German courts, see Basedow and Yassari (n 69). 78 ibid. 79 Para 56 ff.

300  Filippo Marchetti public policy matter in depth,80 though the few words used in the judgment do suffice to understand their reasoning. In fact, they mentioned that even if the wife had not been allowed to pronounce the divorce under Iranian law (and she was, p ­ ursuant to the marriage agreement), she would have been able to do so under German law given the extreme deterioration of the relations with the husband.81 According to the court, this solution does not trigger the public-policy clause of Article 12 of the Rome III Regulation or the content control clause under Article 10 of the same Regulation. This decision undoubtedly adopted a wider approach not only based on the wording of the Iranian Civil Code, or even based on the simple fact that Islamic law was involved. At the same time, it must be positively welcomed that the court gave appropriate relevance to the matrimonial agreement, which provided for additional rights to the wife on top of the restrictive Iranian law. Moreover, a further positive note is that the decision to give relevance to Iranian law possibly gave the parties the possibility to have applied the law closest to their culture. However, while this decision seems solid under Article 12 of the Rome III Regulation, it could create tensions with its Article 10, which provides – as mentioned above – a restrictive approach with regard to those legal orders that do not recognise gender equality in marriage. Indeed, Article 10, if interpreted restrictively as to provide for an in abstracto control of the lex causae,82 would have led to a total rejection of Iranian law based on its general disfavour towards wives, and German law would have applied. In fact, should the view of the Advocate General in Sahyouni be upheld in future CJEU or national decisions, it is improbable that a judgment such as the one mentioned here could be issued. To be fair, the outcome in this particular case would not have changed, because the court reinforced its motivation by explicitly stating that the same result would have been achieved by the court by applying German law. Nonetheless, it fuels the worry of those who consider a concrete analysis of each situation to be the best approach to handle public-policy-related questions.83

C. Successions With the Succession Regulation, the EU enacted a comprehensive Regulation for jurisdiction, applicable law, and the recognition and enforcement of judgments in succession matters.84

80 Para 72 ff. 81 Pursuant to Arts 1565 (1) and (2), 1566(1), and 1567 BGB, see paras 7 and 73. 82 As concluded by the Advocate General Øe in the Case C-372/16 Sahyouni (n 63). 83 See Wurmnest (n 6) 321 ff. cf LM Möller, ‘Reconsideration of Muslim Divorce Laws in Light of Rome III’ (2014) 10 JPIL 461, 486 ff. 84 On this Regulation in general, see the contributions of P Franzina and A Leandro, Il diritto internazionale privato europeo delle successioni mortis causa (Milano, Giuffrè, 2013); C Carrascosa González, El Reglamento Sucesorio Europeo 650/2012 de 4 de julio 2012 (Granada, Comares, 2014); A Dutta and S Herrler (eds), Die Europäische Erbrechtsverordnung (Munich, Beck, 2014); J Müller-Lukoschek, Die neue EU-Erbrechtsverordnung (Bonn, Deutscher Notarverlag, 2015); U Bergquist, EU-Erbrechtsverordnung – Kommentar (Köln, Schmidt, 2015).

Public Policy  301 Article 35 of the Regulation contains a standard public-policy clause, providing that the ‘application of a provision of the law of any State specified by this Regulation may be refused only if such application is manifestly incompatible with the public policy (ordre public) of the forum’. Again, the legislator introduced a recital (No 58) to give additional information to courts on when this exception may be applied and, again, they decided to introduce the same wording that can be found in the Rome III Regulation.85 Unfortunately, although the Regulation has now been applicable for over three years, case law on this legal instrument is still extremely scarce, and cases on public policy have not yet been found.

III.  Final Remarks The application of public policy in family law matters is a clear demonstration of the ongoing importance of public-policy clauses in EU Private International Law. Its use – sometimes proportionate, sometimes excessive – by national courts, alongside the relevant legal political confrontations that occur when new proposals are issued, demonstrates that European Member States are not yet ready to give up on this last safeguard to the integrity of their values. Even more importantly, it demonstrates that applying Private International Law is not a mechanical, aseptic exercise that can be easily replicated. Instead, it is an exercise of openness and it is a strong political statement of States in favour of foreign legal values, to ensure that disputes are resolved in a way that both litigants may consider to be an equitable exercise of justice. This justice derives, in the case of family law, from the proximity of the applied law to the parties’ culture, origins and perception of justice. However, this political statement should not be interpreted as a blank cheque. Instead, it needs strong checks and balances to avoid unacceptable values from contaminating the legal order of the forum. In this sense, the State becomes a watchdog to safeguard national and supranational values and contributes to strengthening the mentioned perception of justice, which can sometimes be biased towards the lower by the same cultural values that the openness of the forum aims at protecting. Certainly, public policy reminds all stakeholders that there is still a long way to go before a full European integration is reached, and that although the final objective of this journey is to render public-policy clauses redundant, this cannot be rushed without creating imbalances that are unlikely to be welcomed by Member States.



85 See

section II.B.i of this chapter.

302

part vi Recognition and Enforcement

304

22 The Fragmentation of the Recognition and Enforcement Regimes THOMAS PFEIFFER, MIRJAM ESCHER AND JOSEF WITTMANN

Preliminary remarks: This paper was written in 2017 with the aim of assessing the recognition and enforcement regimes as well as the Commission’s proposal on the recast of the Brussels IIa Regulation (hereafter “the Brussels IIa Recast Proposal”). After three years of intensive debate, the Council of the European Union has finally adopted the revised Brussels IIa Regulation in June 2019, hereby significantly facilitating the recognition and enforcement of judgments. The revised Brussels IIa Regulation will apply from August 1, 2022.

I. Introduction The Eufam’s project aims to research the EU system of Private International Law in family matters and ultimately identify possible obstacles to the free movement of persons arising from the application of the respective regulations. In view of these objectives, the recognition and enforcement of judgments constitutes a main research focus within the project. It is apparent that EU citizens and families cannot hope for legal certainty and security without a reliable recognition and enforcement regime. If families are to be able to move freely, it must be assured that their personal (eg, marital) status is recognised in all Member States, and that judgments relating to parental responsibility or maintenance claims are generally enforced.1 In this regard, one major hurdle to the free movement of families is posed by the heterogeneous requirement of exequatur. While the Maintenance Regulation has abolished the exequatur procedure for decisions given in Member States bound by the 2007 Hague Maintenance Protocol, decisions given in states not bound by the 2007 Hague Maintenance Protocol still must be granted exequatur before being enforced. Further, the enforcement of judgments falling under the scope of the Brussels IIa Regulation in general requires exequatur, except for judgments relating to rights of access and return orders. The fragmentation of the European



1 JM

Scott, ‘A Question of Trust? Recognition and Enforcement of Judgements’ (2015) 1 NedIPR 27.

306  Thomas Pfeiffer, Mirjam Escher and Josef Wittmann recognition and enforcement regimes in family matters continues to be deepened by the Member States’ different interpretation of refusal grounds set by the Maintenance Regulation and the Brussels IIa Regulation, such as the ordre public or the requirement to hear the child in matters of parental responsibility. Finally, the enforcement process itself varies from one Member State to another, applying a different degree of awareness to the sensitive process of enforcing judgments relating to parental responsibility. This contribution will – in line with the EUFam’s Project – restructure these matters and examine the rationale behind the described state of fragmentation. In this context, the report will also assess the recent Commission’s proposal to fully abolish the exequatur procedure as foreseen under the Brussels IIa Regulation. The analysis ends by addressing the special problem of enforcing preliminary rulings in matters of child abduction and family matters in general.

II.  The Requirement for Exequatur under the Maintenance and Brussels IIa Regulation A.  The Partial Abolition of Exequatur for Maintenance Decisions The Maintenance Regulation has abolished the need for an exequatur of decisions and agreements rendered in Member States bound by the 2007 Hague Maintenance Protocol (Articles 17). By contrast, an exequatur is still needed for decisions and agreements rendered in Member States not bound by the 2007 Hague Maintenance Protocol (Articles 23 ff), which is only relevant in relation to Denmark and the United Kingdom [NB: The UK left the European Union on 31 January 2020]. The exequatur requirement for decisions rendered in Denmark and the United Kingdom is based on the ground that, as these states are not bound by the conflict-of-law rules of the 2007 Hague Maintenance Protocol, forum shopping could be encouraged. Therefore, these decisions shall not be enforced before being reviewed through an exequatur procedure.2 Further, an exequatur procedure is necessary for decisions rendered in Member States of the 2007 Hague Maintenance Protocol if the decision was not given under the application of the 2007 Hague Maintenance Protocol. According to a decision by the Council (EU) of 30 November 2009, the 2007 Hague Maintenance Protocol is only applicable to maintenance proceedings instituted after 18 June 2011 – irrespective of the time period for which maintenance is claimed (contradictory to Article 22 of the 2007 Hague Maintenance Protocol!).3 Consequently, with the exception of decisions rendered in Denmark and the United Kingdom, only maintenance decisions resulting from proceedings instituted before 18 June 2011 require exequatur under the Maintenance Regulation.



2 See

M Nademleinsky, ‘Die neue EU-Unterhaltsverordnung’ (2011) 4 EF-Z 130, 133. Nürnberg, 10 July 2014, 7 UF 694/14, DES20140710.

3 OLG

The Fragmentation of the Recognition and Enforcement Regimes  307

B. The Exequatur Requirement in Brussels IIa Regulation While the partial exequatur requirement in the Maintenance Regulation for maintenance decisions rendered in Denmark and the United Kingdom, as well as for maintenance decisions resulting from proceedings instituted before 18 June 2011, is widely approved, the exequatur requirement in the Brussels IIa Regulation is strongly disputed. As laid out above, the enforcement of judgments falling under the scope of the Brussels IIa Regulation in general requires exequatur, except for judgments relating to rights of access and return orders. On 30 June 2016, the European Commission proposed a recast of the Brussels IIa Regulation, abolishing the exequatur for all decisions falling in the scope of the Regulation.4 The abolition of exequatur for decisions in family law matters was one of the objectives laid down in 1999 at the European Council in Tampere.5 In addition, the Stockholm Programme6 and the Stockholm Action Plan,7 acknowledging the importance of mutual trust between Member States, establish that the process of abolishing all intermediate measures, such as exequatur, should be continued – including with regards to judgments in cases of parental responsibility. Against this backdrop, the recent Brussels IIa Recast Proposal to abolish the exequatur under the Brussels IIa Regulation seems like an inevitable step in the process of integrating the Member States’ judicial systems and as a further indicator of increasing mutual trust between Member States in each other’s legal systems. In its proposal, the Commission states that exequatur remains an obstacle to the free circulation of decisions.8 As an example, the Commission cites that the time for obtaining exequatur varies between Member States, from a couple of days to several months, while it takes additional time to collect the documents necessary for the application and translations. Further, as the exequatur procedure is already abolished for matters of access, the anomaly might arise that rights of access may be enforced before a judgment determining the child’s residence is enforced.9 This phenomenon is particularly serious as matters of residence and contact are often decided in the same proceedings. However, critics of the Brussels IIa Recast Proposal warn that abolishing the exequatur procedure should not be pursued at the expense of abandoning safeguards, including those relating to public policy, nor should it reduce protection for children.10 The difficulties of totally abandoning the safeguards of the exequatur process are demonstrated in particular by the different interpretation of refusal grounds, such as the ordre public 4 Brussels IIa Recast Proposal 10 f. 5 Tampere summit, para 34. 6 The Stockholm Programme, paras 3.1.2 and 3.3.2. 7 European Commission, Communication from the Commission to European Parliament, the Council and the Economic and Social Committee, Delivering an Area of Freedom, Security and Justice for Europe’s Citizens – Action Plan Implementing the Stockholm Programme COM(2010) 171 final, 20 April 2010, 8 and 23; see also Scott (n 1) 27. 8 cf Brussels IIa Recast Proposal (n 4) 4. 9 See also Scott (n 1) 27, 28; T Kruger and L Samyn, ‘Brussels II bis: Successes and Suggested Improvements’ (2016) 2 JPIL 132, 160. 10 T Kruger and L Samyn (n 9) 160; see also MJ Escher and J Wittmann, Report on German Good Practices (EUFam’s Project, 2016) 5 ff available at www.eufams.unimi.it/wp-content/uploads/2017/01/EUFAMSGerman-report-on-good-pracrices.pdf.

308  Thomas Pfeiffer, Mirjam Escher and Josef Wittmann or the requirement to hear the child in matters of parental responsibility. The following chapter is going to examine the varying understanding of refusal grounds within the Member States’ judiciaries. Based on these findings, an assessment will be given on whether removing the requirement for exequatur will indeed mean the abandonment of certain safeguards and whether certain safeguards could be upheld, even if exequatur is abolished.

III.  Grounds of Non-Recognition and Refusal of Enforcement The grounds of non-recognition or non-enforcement stipulated in Article 23 Brussels IIa Regulation, as well as in Article 24 Maintenance Regulation, are to be interpreted in an exhaustive way.11 Thereby, the European legislator aims to guarantee the establishment of a uniform area of justice in Europe. However, there are some exceptions to this rule as the grounds of non-recognition and refusal of enforcement concern certain subjects that still deviate between the Member States.

A.  Hearing of the Child This ground of non-recognition is regulated by Article 23(b) Brussels IIa Regulation. It stipulates the non-recognition of a judgment ‘if it was given, except in case of urgency, without the child having been given an opportunity to be heard, in violation of fundamental principles of procedure of the Member State in which recognition is sought’. The hearing of the child – explicitly referring to fundamental principles of the Member States – is unsurprisingly an area, in which Member State laws still provide manifestly different levels of protection. Germany’s case law, for example, sets strict standards in relation to Article 23(b) Brussels IIa Regulation. This stems from the fact that the hearing of the child is a fundamental procedural principle in Germany deriving from Articles 103 II, 1 I, 2 II of the German constitution and constitutes part of German ordre public. Exceptions can only be made in order to protect the child’s mental health. The Bundesgerichtshof elaborates that the child must always be heard if: (1) it is appropriate regarding the age and maturity of the child; and (2) the matter is no case of urgency.12 Correspondingly, Article 23(b) Brussels IIa Regulation must be interpreted widely in Germany. It is not enough to summon children to appear before court to fulfil the requirement. The wording ‘having been given the opportunity to be heard’ merely means that the children cannot be forced to speak, but they should explicitly be given the opportunity to be heard.13

11 OLG Stuttgart, 25 October 2013, 17 UF 189/13, DES20131025, stating that Art 24 cannot be extended beyond its wording; cf Maintenance Regulation, Art 34(1). 12 BGH XII, 8 April 2015, ZB 148/14, DET20150408. 13 OLG Schleswig, 19 May 2008, 12 UF 203/07, DES20080519; OLG Hamm, 26 August 2014, 11 UF 85/14, DES20140826.

The Fragmentation of the Recognition and Enforcement Regimes  309 However, other countries do not seem to impose such strict standards. In Italy, there is a trend not to hear the child in cases in which the parties apply for separation or divorce by mutual consent, as no conflict between the parents exists. To this effect, Article 336bis of the Italian Civil Code stipulates that no hearing of the child shall take place if it is contrary to the child’s best interest or it is manifestly unnecessary. Namely, the option to refrain from hearing the child for reasons of lacking necessity exemplifies a difference with the German approach, which deems the hearing of the child’s opinion necessary under all circumstances. In Italy, courts have different practices depending on their geographical location as well. The Tribunale di Bolzano/Landesgericht Bozen, for example, even hears small children, as it is located in South Tyrol and may be more adapted to Austrian or German legal thinking. The Italian Central Authority deems cases of abduction involving Northern Europe most problematic. If the courts refrain from hearing a child in such case, it seems necessary to deliver evidence as to the impossibility of such hearing. However, Annex IV of the Brussels IIa Regulation14 does not provide for this, so a rewording of the Annex might be necessary. In Spain, the lack of hearing of the child even led to the European Court of Human Rights criticising Spain and ordering a court to hear the 13-year-old girl.15 As the current text of the Brussels IIa Regulation leaves a certain degree of discretion to Member States’ courts, the situation described above underlines that further action may be advisable. Especially the German practice calls for a European standard that strengthens the child’s position by possibly setting a strict age limit. Italian experts propose requesting a detailed explanation as to why no hearing of a child took place in the respective courts, thereby aiming at the introduction of an additional safeguard against cross-border misunderstandings. In a questionnaire carried out within the EUFam’s Project under the supervision of University of Milan, multiple experts from all participating countries had the opportunity to assess the necessity of setting a strict European standard. 64 per cent of the experts answered the question whether they thought ‘a higher degree of harmonisation at the EU level would prove useful in order to minimise the recourse of the ground of non-recognition provided in Article 23(b)’ with ‘yes’.16 This supports the German call for a European standard. This situation is also captured in the current Brussels IIa Recast Proposal. The explanatory memorandum states that there are discrepancies in the interpretation of the ground for non-recognition, in particular with regards to the hearing of the child. These difficulties derive from the diverging rules in the Member States. The memorandum concludes that Member States with stricter standards than the Member State of origin of the decision are indeed encouraged by the current rules to refuse recognition and exequatur if the hearing of the child does not satisfy their own standards. The Proposal underlines the importance to take the child’s best interest into account and to underline this principle in the rules more firmly.17 Following these observations, the Proposal

14 Certificate referred to in Art 42(1) concerning the return of the child. 15 Iglesias Casarrubios and Cantalapiedra Iglesias v Spain App no 23298/12 (ECtHR, 11 October 2016). 16 114 experts gave an answer to this question, 73 answered with yes (64.04 %), 26 had no opinion or did not know (22.81 %) and 15 answered no (13.16 %). 17 cf ibid, 4.

310  Thomas Pfeiffer, Mirjam Escher and Josef Wittmann recommends a new Article 20 stipulating a ‘right of the child to express his or her views’. Further, the Proposal states: When exercising their jurisdiction under Section 2 of this Chapter, the authorities of the Member States shall ensure that a child who is capable of forming his or her own views is given the genuine and effective opportunity to express those views freely during the proceedings. The authority shall give due weight to the child’s views in accordance with his or her age and maturity and document its considerations in the decision.18

This article would constitute a change in the system as it introduces an obligation of substantive law to hear the child in all matters of parental responsibility. Such obligation is already included in the UN Convention on the Rights of the Child, but would become a directly applicable rule of European Union law, giving none of the Member States an option to disregard it. Further, the lack of a hearing of the child would no longer need to be an explicit ground of refusal to recognise a decision, but it would still be part of the public policy of countries greatly valuing it, such as Germany. Even though this proposal aims to underline the importance of the children’s views for the proceedings, it does not satisfy the universal call for a stricter standard. It still leaves room for interpretation on the part of the Member States. But a common minimum age for the hearing of a child is a highly debated and criticised possibility as well. The difficulties of the topic, especially in light of the UN Convention on the Rights of the Child, seem to call for a case-by-case assessment. Every child’s maturity is a compilation of multiple factors and the child’s history has to be taken into account, as well as their sensitivity. Further, it is discussed whether minimum standards for the process should be set, in particular by whom the child should be heard (by a judge or a social worker). But there is no case law flagging this issue and there was no concern raised with regards to this. Thus, the current regulation of Article 23(b) Brussels IIa Regulation seems to be unsatisfactory in different regards. It is only strictly applied by Member States which include the child’s right to be heard in their concept of public policy. Therefore, the provision seems to be purely declaratory. Further, it does not adequately underline the importance of the inclusion of the child’s views in light of the UN Convention on the Right of the Child and in order to rule in the child’s best interest. But most importantly, it deepens the discrepancies in the interpretation of Article 23(b) Brussels IIa Regulation in the different Member States and even drives the stricter Member States to refuse recognition or enforcement. In comparison, the proposal’s substantive approach is a better concept, but its wording is still open.

B.  Public Policy The status quo is one of mutual recognition, assuming an infringement of public policy only if the decision to be recognised and enforced is at variance with the Member State’s legal order to an unacceptable degree. As set out in the CJEU case Krombach v Bamberski,19 the ordre public exception only applies when there is a manifest

18 cf

ibid, 42. C-7/98 Dieter Krombach v André Bamberski [2000] ECR I-01935, ECLI:EU:C:2000:164.

19 Case

The Fragmentation of the Recognition and Enforcement Regimes  311 contradiction with the fundamental values of the state where recognition or enforcement is sought. This definition also applies in matters of European family law. For example, Article 24(a) Maintenance Regulation stipulates that a decision shall not be recognised ‘if such recognition is manifestly contrary to public policy in the Member State in which recognition is sought’. It can be stated that – as under the scope of any other European instrument of private international and procedural law – ‘public policy exception is often invoked, but seldom applied’.20 Hereby, most ordre public objections relate to procedural principles, rather than to substantial public policy. This may be explained by the limited scope of the Regulations only applying between Member States and therefore rarely touching on issues, such as the recognition of marriages from Islamic countries.21

i.  Procedural Public Policy The Member State courts follow a narrow application of this provision consistent with the wording ‘manifestly contrary’ and the CJEU case law.22 The judgments collected in the EUFam’s case law database and recapitulated in the EUFam’s First Assessment Report23 stand as an example. Quoting the CJEU case Trade Agency Ltd, the Oberlandesgericht Karlsruhe confirmed a declaration of enforceability of a Dutch judgment granting maintenance to a divorced wife and her children. The plaintiff argued that the decision of the Dutch court infringed the German public order, since he was not granted an interpreter during the foreign proceedings. The Oberlandesgericht Karlsruhe, in line with the CJEU case law, held that an infringement of public policy could not be detected as the Dutch judgment clarifies that the plaintiff deliberately renounced his right to defend himself during the Dutch proceedings.24 Further, the Oberlandesgericht Hamm25 affirmed that a Polish judgment granting maintenance in favour of the child did not constitute a breach of the German ordre public merely because paternity was ascertained solely on the basis of the mother’s testimony. In the view of the German court, such modus operandi does not contradict public policy because the father did have the chance to request a DNA test during the Polish proceedings. In addition, the father had the possibility to appeal the decision in Poland before claiming an ordre public violation in the Member State

20 B Hess and T Pfeiffer, Interpretation of the Public Policy Exception as referred to in EU Instruments of Private International and Procedural Law (Brussels, European Parliament, 2011). 21 cf Case C-281/15 Soha Sahyouni v Raja Mamisch [2016] ECLI:EU:C:2016:343. 22 OLG Hamm, 28 June 2012, II-11 UF 279/11, DES20120628 (it is not an infringement of public policy if the court based the defendant’s paternity solely on the mother’s testimony, but the defendant had the chance to request a DNA test); OLG Stuttgart, 13 February 2012, 17 UF 331/11, DES20120213; App Catania, 27 May 2014, ITS20140527 (default judgments can become final without notice to the person in default). 23 E D’Allesandro, ‘Matters related to recognition and enforcement’ in I Viarengo and FC Villata (eds), First Assessment Report on the case-law collected by the Research Consortium (EUFam’s Project, 2016) 93 available at www.eufams.unimi.it/wp-content/uploads/2017/01/EUFAMS-First-Assessment-Report-of-thecollected-case-law.pdf. 24 OLG Karlsruhe, 27 January 2014, 8 W 61/13, DES20140127. 25 OLG Hamm, 28 June 2014, II-11 UF 279/11, DES20120628.

312  Thomas Pfeiffer, Mirjam Escher and Josef Wittmann of enforcement (ie, in Germany). A similar case was decided – in the same manner – by the Oberlandesgericht Stuttgart.26 Moreover, the Corte di Appello di Catania27 held that a default judgment on maintenance, becoming final without notification to the person who was in default of appearance, cannot be considered manifestly contrary to the ordre public (Article 24(a) Maintenance Regulation). This is because the right of defence can be limited in the interest of legal certainty. Accordingly, Italian default decisions become final after six months from the issuance. Finally, the French Cour de cassation28 dealt with the wording of Article 24(a) of the Maintenance Regulation, pursuant to which ‘the test of public policy may not be applied to the rules relating to jurisdiction’. A French woman, after having transferred her domicile to the United Kingdom, obtained a divorce decree according to English Law. In the course of the French enforcement proceedings, the husband argued that fraud had been perpetrated by the woman in declaring that her habitual residence was in England and, therefore, the judgment was in violation of French public policy. Nonetheless, the French Cour d’appel de Toulouse,29 properly applying Article 24(a) of the Maintenance Regulation, declared the English judgment enforceable in France. The decision was confirmed by the Cour de cassation.

ii.  Substantive Public Policy Within the scope of the Brussels IIa Regulation, Italian courts repeatedly held that pursuant to Article 22(a) Brussels IIa Regulation, a judgment of divorce rendered abroad in the absence of a previous decision on legal separation cannot be considered to be in conflict with the substantive public policy even if, under Italian law, legal separation is a necessary step to obtain divorce.30 Regarding the Maintenance Regulation, more crucial subjects surface. The Oberlandesgericht Stuttgart determined whether the maintenance sum can be based on fictitious or actual income, coming to the conclusion that this constitutes no infringement of public policy.31 The Oberlandesgericht Frankfurt found that a maintenance sum being set too high is no breach of substantive public policy.32 Finally, the Tribunale di Belluno discussed whether a divorce decree not taking stand on custody and maintenance infringes public policy if the possibility to raise such claims before a court is given. This was negated as well.33

26 OLG Stuttgart, 13 February 2012, 17 UF 331/11, DES20120213, concerning a Czech judgment granting maintenance, based merely upon the statement of the applicant, according to which the defendant was the father of the child. 27 App Catania, 27 May 2014, ITS20140527. 28 Cass, 25 May 2016 No 15-21407, FRT20160525. 29 Cour d’appel de Toulouse, 8 April 2015, quoted by Cass, 25 May 2016 No 15-21407, FRT20160525. 30 App Bologna, 18 November 2014, ITS20141118; Trib Firenze, 9 March 2015, ITF20150309; Trib Belluno, 5 November 2010, ITF20101105. 31 OLG Stuttgart, 1 January 2014, 17 UF 150/14, DES2014120. 32 OLG Frankfurt am Main, 30 December 2015, 4 UF 268/15, DES20151230 (elaborating that the maintenance sum is dependent on the need determined on a case-by-case basis in Germany as well). 33 Trib Belluno, 5 November 2010, ITF20101105.

The Fragmentation of the Recognition and Enforcement Regimes  313

iii.  Interim Findings and Results of the EUFam’s Project’s Questionnaire In line with these findings, 54 per cent of the experts asked about the application of public policy in the EUFam’s Project’s Questionnaire answered that the public policy exception has not been applied too extensively in practical cases. Thus, it can be concluded that mutual trust among Member States is not jeopardised. Only 11 per cent gave the opposite answer and 35 per cent had no opinion.34 This ratio shows that the public policy exception is not regarded as a crucial topic. However, an issue that was raised during the discussion accompanying the Italian Exchange Seminar targets the question whether the recognition of a decision or status in order to protect the weaker party can conflict with public policy. In this context, it was underlined that public policy does not observe formal aspects, but the effect in light of the parties’ cultural identity must be taken into account. Therefore, a polygamous marriage and the repudiation of a wife can be in line with public policy if such recogni­ tion protects the repudiated wife. This issue is currently relevant, as more and more culturally diverging matters emerge. Regarding public policy, the courts have to evaluate the effect on a case-by-case basis, and not by the formal remedy itself. In light of the disputed case law, this flexible and practical approach is already widely adapted, leaving the hope that the new challenges will be met likewise.

C.  Service of Documents Both the Brussels IIa Regulation and the Maintenance Regulation have a provision stipulating the lack of notification to the defendant of the documents instituting proceedings as grounds for refusal of recognition or enforcement. Thereby, not only the lack of the notification itself, but an error in the process shall hinder recognition and enforcement. Article 23(c) Brussels IIa stipulates that a judgment shall not be recognised: where it was given in default of appearance if the person in default was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable that person to arrange for his or her defence unless it is determined that such person has accepted the judgment unequivocally.

The question arises to what the wording ‘to enable defence’ refers. Especially in crossborder cases it is necessary to provide enough time and information to prepare a substantial defence. The Amtsgericht Berlin-Pankow/Weißensee elaborated that it is not enough to serve the papers at an old address, because of the possibility of deliberate misinformation of the other party.35 Otherwise, the applicant could influence the

34 114 experts answered this question; 62 (54.39%) said no, 40 had no opinion or did not know (35.09%), 12 said yes (10.53%). 35 Amtsgericht Berlin-Pankow/Weißensee, 20 March 2009, 28 F 935/09, DEF20090320 (the documents had only been sent to the former French address of the plaintiff and not her current German address as a

314  Thomas Pfeiffer, Mirjam Escher and Josef Wittmann possibility for the defendant to prepare his/her defence. Similarly, an English judge refused recognition and enforcement of a Romanian judgment in a matter involving parental responsibility.36 The mother was not served with the initiating documents. Instead they were sent to the child’s maternal grandmother, although the mother claimed that the documents had not been received. However, according to the Romanian judge the service met the requirements of Romanian law. Article 24(b) Maintenance Regulation stipulates that a decision shall not be recognised where it was given in default of appearance, if the defendant was not served with the document which instituted the proceedings or with equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the decision when it was possible for him to do so.

In particular, the notion of ‘incorrect or missing service’ requires a thorough examination in each case, as, occasionally, defendants invoke this refusal ground on the basis of incorrect allegations of fact. In a case of the Oberlandesgericht Nürnberg,37 the defendant had claimed that he only learned of the divorce proceedings and the maintenance claim in January 2013. However, this claim had been proven wrong, as the defendant had in fact received a copy of the document instituting the Polish proceedings in December 2011, and even gave a statement in reaction to this copy.

D. Irreconcilability The notion of irreconcilability simply states that a decision cannot be irreconcilable ‘with a later judgment relating to parental responsibility given in the Member State in which recognition is sought’ (Brussels IIa Regulation), or ‘with a decision given in the dispute between the same parties in the Member State in which recognition is sought’ (Maintenance Regulation). Irreconcilability as grounds for refusal (Article 23(f) Brussels IIa Regulation) gives preference to the later judgment, and therefore acknowledges the changing circumstances relating to parental responsibility.38 However, instances occur where courts exercise jurisdiction in violation of the lis pendens rule of Article 19 Brussels IIa Regulation which requires the court second seised to decline jurisdiction. In these cases, the judgment of the court wrongfully exercising jurisdiction can of course not be granted preference, but rather must be declined recognition and enforcement. The ECJ was faced with that matter in the Mercredi case, stating that Articles 23(e) and (f) Brussels IIa Regulation only allow denying recognition of decisions if they are

result of the respondent’s deliberate misinformation); in Audiencia Provincial de Barcelona, 20 February 2015 No 58/2015, ESS20150220, the person in default was served with the documents, but did not have s­ ufficient time to prepare a defence as the defendant was abroad; cf Case C-619/10 Trade Agency Ltd v Seramico Investments Ltd [2012] ECLI:EU:C:2012:531, para 32. 36 MD v AA [2014] EWHC 2756 (Fam) as discussed by Scott (n 1) 32. 37 OLG Nürnberg, 10 July 2014, 7 UF 694/14, DES20140710. 38 Scott (n 1) 33.

The Fragmentation of the Recognition and Enforcement Regimes  315 irreconcilable with a later decision of a Member State court.39 Therefore, the court created an unwritten ground of non-recognition, allowing the court first seised not only to question jurisdiction, but also to decline enforcement of an order by the court second seised. For reasons of legal certainty and to ensure the consistent application of this (unwritten) refusal ground throughout the Member States,40 this matter should be addressed in a potential recast of the Brussels IIa Regulation.41 With regard to the Maintenance Regulation, the Oberlandesgericht Düsseldorf did not consider the fact that a Dutch decision had been appealed, and thereby modified, as a ground for refusal pursuant to Article 24(1)(d) Maintenance Regulation.42 This interpretation leads to the phenomenon that a decision is enforced that would not be effective in the rendering state itself, promoting an imbalance inherent in the international enforceability of decisions. The Bundesgerichtshof clarifies this in its decision regarding the instant case. It stipulates that it is a general principle that a decision can only be enforced if it would also be effective in the rendering state itself. Therefore, apart from possible irreconcilability in the state of enforcement, the enforcing court must take the legal effects of the decision in the rendering state into account as well because recognition means extending the effects of a decision from its Member State of origin to the target Member State.43

IV.  Abolition of Exequatur The abolishment of the exequatur under the Brussels IIa Regulation is a worthwhile goal in the process of integrating the Member States’ judicial systems. However, certain safeguards must remain. While the exequatur is considered pure formality in most cases, and can sometimes be costly and time-consuming, the assessment of refusal grounds has shown that situations occur in which control and assessment on part of the state of enforcement is necessary. For instance: –– The Member State courts assign different degrees of relevance to the hearing of the child in matters of parental responsibility. Outright abolishment of the exequatur would require hard-to-reach concessions by countries currently setting very strict standards in relation to Article 23(b) Brussels IIa Regulation. This is especially true with regard to Germany, where the hearing of the child is a fundamental procedural principle deriving from Article 103 II, 1 I, 2 II of the German Constitution and constitutes part of German ordre public. 39 Case C-497/10 PPU Barbara Mercredi contro Richard Chaffe [2010] ECLI:EU:C:2010:829. 40 eg the court of OS Rímavská Sobota demanded a restrictive interpretation of the concept regarding Art 23(f) Brussels IIa Regulation. It stipulates that the mere fact of a breach of Art 19 is not a sufficient reason to call two decisions irreconcilable, OS Rímavská Sobota, 24 May 2012, 9P/8/2011, SKF20120524. 41 See also A Dutta and A Schulz, ‘First Cornerstones of the EU Rules on Cross-border Child Cases: the Jurisprudence of the Court of Justice of the European Union on the Brussels IIa Regulation From C To Health Service Executive’ (2014) 1 JPIL 1, 14. 42 OLG Düsseldorf, 28 April 2015, 1 UF 261/14, DES20150428. 43 BGH XII, 23 September 2015, ZB 234/15, DET20150923 in connection with Case C-139/10 Prism Investments BV v Jaap Anne van der Meer [2011] ECLI:EU:C:2011:653.

316  Thomas Pfeiffer, Mirjam Escher and Josef Wittmann –– The public policy exception only applies in cases of manifest contradiction with the fundamental values in the state of recognition or enforcement; thus, its application is denied in the vast majority of cases. However, due to upcoming fundamental changes to European Family Law, the ordre public exception might still be necessary as a safeguard to national autonomy. There is no common approach to same-sex marriages. Further, in the wake of the current refugee crisis, courts must address challenges arising from Islamic law institutions, such as polygamous marriage. In this context, many Member States will consider the level of protection granted to women a part of their public policy; consensus between Member States in this regard will be difficult to achieve. –– Situations continue to occur, in which the service of documents is not sufficient to enable proper defence. It must always be assured that procedural rights of the parties have been respected. –– Further, it has been shown that a decision can only be enforced pursuant to Articles 23 ff. Maintenance Regulation if the decision would also be effective in the rendering state itself. Therefore, the enforcement court must take every modification into account.44 A decision cannot be awarded legal effects which it does not have in the Member State of Origin, or which a decision of the same kind rendered directly in the Member State of Enforcement could not produce.45 The Brussels IIa Recast Proposal to abolish the exequatur under the Brussels IIa Regulation adequately takes into account the above-mentioned concerns. While the exequatur as an obligatory intermediary procedure required for enforcement will be given up, a party against whom enforcement is sought may – upon application – still invoke the same grounds to oppose enforcement: public policy, failure to serve the documents instituting the proceeding, reconciliation with another decision. Only the lack of hearing the child would no longer be an explicit ground of refusal to recognise a decision. Instead, an obligation of substantive law to hear the child in all matters of parental responsibility shall be introduced. This obligation of course leaves room for interpretation on the part of the Member States. However, cases in which a Member State’s court reaches an objectively unacceptable interpretation of the law, and disregards the child’s right of self-determination, the public policy exception would continue to apply.

V.  Varying Methods of Enforcement Article 47(1) Brussels IIa Regulation stipulates that ‘the enforcement procedure is governed by the law of the Member State of enforcement’, thus leaving the selection of enforcement measures to the Member States. This decision of the European legislator opens the door for a wide variety of enforcement measures documented by a comparative study conducted by the TMC Asser Instituut in The Hague in December 2007.46 44 ibid. 45 Case C-139/10 Prism Investments BV v Jaap Anne van der Meer (n 43) para 38. 46 TMC Asser Instituut, Comparative Study on Enforcement Procedures of Family Rights (JLS/C4/2005/06, The Hague, 2007).

The Fragmentation of the Recognition and Enforcement Regimes  317 Whereas Member States such as Belgium and Austria commence the enforcement process by indirect measures such as mediation through courts, common law jurisdictions often resort to more drastic methods, such as fines or even imprisonment of the parents.47 Concerning these more drastic measures, the Member State of enforcement must bear in mind the possible effect on the child. The Scottish Second Division of the Inner House of the Court of Session was confronted with such a case and stipulated that even though parental imprisonment separates the child from the primary carer, courts are nonetheless entitled to impose such sentence if deemed necessary.48 Consequently, such measures can be taken as last resort after careful consideration of the possible effects on the child. Most problematic is the option to apply force directly to the child. Coercion directly forced on the child can leave the child traumatised and the family deeply harmed instead of solving the dispute.49 These measures can therefore directly contradict the foremost goal of the Brussels IIa Regulation, which is to protect the child’s best interest. Only in situations endangering the child direct force will be appropriate. If such coercion is indeed necessary, and the situation can be resolved by applying force to a parent instead of the child, this approach should always be an option taken first. Then again, not offering the possibility of force being applied can lead to an impasse as well. In the case Re ML and AL (Children) a Deputy Judge of the High Court called it a ‘sorry state of affairs’ for the Brussels IIa Regulation that his judgment could not be enforced properly in Austria.50 He criticised the Austrian measures of enforcement, as well as the lack of judicial cooperation, stating that the only measure available in this case in Austria was a fine, which was not even imposed. In his view, the mother was abusing the children by not allowing contact with their father. Under these special circumstances, he deemed force necessary and appropriate.51 This case underlines that whereas in most cases a fine will be sufficient,52 each case much be analysed according to its special circumstances. The question remains how an effective enforcement of the decisions under the Brussels IIa Regulation can be ensured, not leaving a ‘sorry state of affairs’. It is certainly desirable to find a common solution, namely a European approach to enforcement. But such an attempt at unification could undercut the national systems of enforcement. The countries not only have differing enforcement regimes, but different classifications of the matters to be enforced.53 Unification would disturb the coherent logic of these national systems.54 Therefore, the preferable approach may be providing for minimum standards and some basic rules on a European level, eg by way of a directive.55 The court of origin

47 ibid 11 ff, 91. 48 M v S 2011 SLT 918, 922 (2009). 49 Scott (n 1) 33 f. 50 Re ML and AL (Children) [2006] EWHC 3631 (Fam) para. 8. 51 Re ML and AL (Children) [2006] EWHC 3631 (Fam) para 7 ff. 52 cf Trib Roma, 24 March 2017, ITF20170324 ordering an enforcement measure of a payment of €500 for each month of delay in complying with the order. 53 TMC Asser Instituut, Comparative Study on Enforcement Procedures of Family Rights (n 46) 55. 54 T Kruger and L Samyn (n 9) 161 refer to the ‘coherent logic’ of the national procedural systems that mustn’t be disturbed. 55 ibid.

318  Thomas Pfeiffer, Mirjam Escher and Josef Wittmann must be directed to give greater detail as to how the decision should be enforced and the Member State of enforcement must provide for certain coercive measures, ensuring compliance with the decision.56 In all these considerations, the best interest of the child must always be the paramount principle guiding the selection of an appropriate enforcement measure. Further, an instrument of cooperation for judges is paramount in these cases. As noted by the Deputy Judge of the High Court in Re ML and AL (Children), the judges must be able to communicate to best enforce a complicated decision in the sensitive area of family law.57 The Model Protocol for communication of judges designed by the EUFam’s project is an instrument allowing for exactly such communications. Additional problems could certainly arise if exequatur is abolished under the revised Brussels IIa Regulation. Then, the Member States might fail to communicate to ensure a suitable measure of enforcement as the courts often play a decisive role in the enforcement process. The concern was raised that the Member States might directly resort to the most obvious measure of enforcement, being coercion directed on the child.58

VI.  Preliminary Judgments and Child Abduction A.  Return of the Child In cases of parental child abduction, the overarching goal must be the rapid execution of the child-return procedure. However, under the current enforcement regime the immediate return of the child is not always ensured.59 As an example, the 1980 Hague Child Abduction Convention continues to apply between EU Member States. However, in specific cases the Brussels IIa Regulation provides for an additional procedure of obtaining the return of an abducted child: If a court of the EU Member State to which the child has been abducted refuses the return of the child on the grounds set out in Article 13 of the 1980 Hague Child Abduction Convention, the Brussels IIa Regulation allows parallel proceedings concerning custody rights in the state of the (former) habitual residence of the child. If such custody proceedings result in a return order in favour of the parent left behind – which is accompanied by a certificate pursuant to Article 42 of the Regulation – this decision shall be immediately enforceable in other EU Member States without any further procedure regarding registration for enforcement or declaration of enforceability (Article 11(6)–(8) Brussels IIa Regulation). In practice, this two-track system is only infrequently used and largely ineffective. The certificate pursuant to Article 42 Brussels IIa Regulation is rarely issued, most likely because the hearing of the child (necessary according to Articles 11(2) and 42(2)(a) Brussels IIa Regulation) causes considerable difficulties. It requires the court to either act under the Evidence Regulation or to cooperate informally with the child welfare officers in the state to which the child has been taken. However, even if the



56 cf

Scott (n 1) 33. Re ML and AL (Children) ([2006] EWHC 3631 (Fam) para 7. 58 Scott (n 1) 33. 59 cf Brussels IIa Recast Proposal (n 4) 3. 57 cf

The Fragmentation of the Recognition and Enforcement Regimes  319 hearing of the child has been properly conducted and an Article 42 certificate has been issued, court orders to return the child are rarely enforced, despite the fact that under the Brussels IIa Regulation they are automatically enforceable without the need for exequatur. To put it briefly, the mechanism laid down in Article 11(6)–(8) Brussels IIa Regulation is considered an ineffective procedure that involves additional costs and even causes further instability for the child by lengthening the ongoing proceedings.60 Against this backdrop, the recent Brussels IIa Recast Proposal to streamline this so-called ‘overriding mechanism’ (newly proposed Article 26) is considered a step in the right direction. For example, the judgment of the court refusing the return of the child and other relevant documents, which have to be transmitted to the court having jurisdiction, shall be translated into the official language of that court. Further, the court where custody proceedings are pending is then required to review the issue of child custody considering the best interests of the child, as well as the reasons and evidence for the decision of non-return of the child. However, obstacles remain, as any child who is capable of forming his or her own views has to be heard in these proceedings,61 which in most cases requires the cooperation of the abducting parent (even if alternative means such as videoconferencing are used). In general, the Commission’s focus on expediting the return procedure foreseen in the 1980 Hague Child Abduction Convention is strongly welcomed.62 This includes the possibility of taking provisional measures and declaring the decision ordering the return of the child provisionally enforceable, notwithstanding any appeal. In general, the one-appeal limit for return decisions adequately confronts delaying national provisions, such as in Spain, where the second-instance appellate courts are granted power to suspend the enforcement of a decision in the best interest of the child.

B.  Scope of the Application of the Brussels IIa Regulation in Light of Article 20 According to the CJEU interpretation in Purrucker I,63 Article 20 of the Brussels IIa Regulation constitutes an opening clause stipulating that in urgent cases a Member State can take provisional measures in respect of persons or assets available under the law of that state, even if, under the Brussels IIa Regulation, the court of another Member State has jurisdiction on the substance of the matter. Consequently, a court not competent on the merits under the Brussels IIa Regulation can resort to other instruments of private international law by way of Article 20. As an example, the Oberlandesgericht München referred to the Hague Convention of 1996 on the Protection of Children in a case concerning the enforcement of a judgment on parental responsibility, thereby disregarding Article 61 Brussels IIa Regulation.64



60 Escher

and Wittmann, Report on German Good Practices (n 10) 4 ff. Brussels IIa Recast Proposal (n 4) 13. 62 ibid 3, 12 ff. 63 Case C-256/09 Bianca Purrucker v Guillermo Vallés Pérez [2010] ECLI:EU:C:2010:437. 64 OLG München, 22 January 2015, 12 UF 1821/14, DES20150122. 61 cf

320  Thomas Pfeiffer, Mirjam Escher and Josef Wittmann Particularly in cases of child abduction, Article 20 of the Brussels IIa Regulation is essential to accelerate the return procedure. However, for clarity and foreseeability within the recognition and enforcement regime, the opening clause of Article 20 Brussels IIa Regulation has to be applied in a harmonious manner complying with a precise scope of application. In this regard, the CJEU in Purrucker I provided for a system of enforcement, distinguishing between different categories of provisional measures: –– If the court of origin of a provisional measure has jurisdiction over the main proceedings, pursuant to Articles 8 ff of the Brussels IIa Regulation, the recognition and enforcement of the provisional measure is subject to Articles 21 ff of the Regulation. –– In contrast, if the court of origin does not have jurisdiction, pursuant to Articles 8 ff of the Brussels IIa Regulation, Articles 21 ff are inapplicable. In this case, the provisional measure can only be recognised and enforced based on separate international agreements or the respective national law. However, this recognition outside the Brussels IIa Regulation is only possible if the requirements of Article 20 of the Regulation are met (‘opening clause’). This interpretation was exemplarily applied by the Oberlandesgericht Stuttgart.65 The case concerned a provisional measure rendered in Hungary. The Hungarian court had not explicitly based its international jurisdiction on the Brussels IIa Regulation, but had referred to the child’s habitual residence. This approach implies that the Hungarian court had indeed resorted to Article 8 Brussels IIa Regulation without explicitly pointing it out. Therefore, the court of enforcement was right to apply Articles 21 ff Brussels IIa Regulation. However, the delimitation of Articles 21 ff and Article 20 Brussels IIa Regulation still causes misunderstanding among practitioners, with some courts still issuing provisional measures without any examination or explanation concerning their jurisdiction,66 or they resort to domestic rules of private international law, while their international jurisdiction properly results from the Brussels IIa Regulation.67 This forces the court of enforcement to examine the requirements of Article 20 Brussels IIa Regulation as recognition and enforcement of provisional measures are only subject to Articles 21 ff of the Regulation if the court of origin has jurisdiction over the main proceedings pursuant to the Articles 8 ff Brussels IIa Regulation. Examining whether the provisions of Article 20 Brussels IIa Regulation have been complied with, the court in the state of enforcement has then to determine the enforceability based on other international agreements (eg, the Hague Convention on the Protection of Minors, the European Convention concerning Custody and the Restoration of Custody of Children (1980)) or the respective national law. These rules hold stricter requirements for the

65 OLG Stuttgart, 3 March 2014, 17 UF 262/13, DES20140305, confirmed by the BGH, 8 April 2015, XII ZB 148/14, DET20150408. 66 cf KS v Brně, 18 September 2012, 38 Co 356/2012, CZS20120918. 67 cf Županijski sud u Rijeci, 28 November 2013, GŽ-5432/2013-2, CRS20131128 (both the court of first instance and the court of second instance referred exclusively to domestic rules of Private International Law); Županijski sud u Dubrovniku, 14 October 2015, Gž 1336/14, CRS201410258 (set aside the first-instance decision, by which a provisional measure had been granted, on the basis, inter alia, that the lower court did not refer to the relevant Brussels IIa Regulation provisions in order to assess its jurisdiction, and applied the domestic rules instead).

The Fragmentation of the Recognition and Enforcement Regimes  321 recognition and enforcement of foreign court decisions. For example, the court in the state of recognition/enforcement is permitted to decide ex post on whether the court of origin had jurisdiction, which contradicts the Regulation’s goal to simplify crossborder litigation procedures. Therefore, it is welcomed that the Commission proposes the simplification of the recognition and enforcement regime regarding provisional measures, including provisional measures within the provisions for recognition and enforcement, and thereby facilitates the circulation of decisions between Member States.68

VII. Summary The Maintenance Regulation has abolished the need for an exequatur of decisions and agreements rendered in a Member State bound by the Hague Maintenance Protocol. In contrast, the enforcement of judgments falling under the scope of the Brussels IIa Regulation generally requires exequatur, except for judgments relating to rights of access and return orders. On 30 June 2016, the European Commission proposed a recast of the Brussels IIa Regulation, abolishing the exequatur for all decisions falling under the scope of the Regulation. Critics warn that abolishing the exequatur procedure should not be pursued at the expense of abandoning safeguards, including those relating to public policy, nor should it reduce protection for children. Indeed, this assessment of refusal grounds has shown that situations occur in which control and assessment on the part of the state of enforcement is necessary. However, the Brussels IIa Recast Proposal to abolish the exequatur adequately takes into account the expressed concerns. While the exequatur as an obligatory intermediary procedure required for enforcement will be given up, a party against whom enforcement is sought may – upon application – still invoke the same grounds to oppose enforcement: public policy, failure to serve the documents instituting the proceeding, reconciliation with another decision. Only the lack of hearing the child would no longer be an explicit ground of refusal to recognise a decision. Instead, an obligation of substantive law to hear the child in all matters of parental responsibility shall be introduced. This obligation of course leaves room for interpretation on the part of the Member States. However, in cases in which a Member State’s court reaches an objectively unacceptable interpretation of the law, disregarding the child’s right of self-determination, the public policy exception would continue to apply. Effective enforcement of decisions requires unification of national enforcement regimes. The preferable approach is to regulate minimum standards regarding the methods of enforcement, as well as to enhance judicial cooperation. Hereby, the court of origin must be directed to give greater detail as to how the decision should be enforced

68 See also A Gandia Sellens, C Camara, A Faucon Alonso, Ph Siaplaouras, Report on Internationally Shared Good Practices (EUFam’s Project, 2016) 34 available at www.eufams.unimi.it/wp-content/uploads/2017/06/ Report-on-Internationally-Shared-Good-Practices-v2.pdf.

322  Thomas Pfeiffer, Mirjam Escher and Josef Wittmann and the state of enforcement must provide for certain coercive measures ensuring compliance with the decision. The Commission’s focus on expediting the return procedure foreseen in the 1980 Hague Child Abduction Convention is strongly welcomed. This includes the possibility of taking provisional measures and declaring the return order provisionally enforceable notwithstanding any appeal.

part vii Coordination with Third States

324

23 Forum Necessitatis PIETRO FRANZINA

I.  The Notion The creation of a forum necessitatis, or forum of necessity, underlies a concern for the effective protection of the right of the claimant to access justice. The idea, put shortly, is that a court, though it lacks jurisdiction under the rules that would normally apply to the case, should exceptionally be permitted to rule on a matter on the ground that the plaintiff would otherwise be barred from effectively asserting his claim, or would encounter practical difficulties that he could not be reasonably expected to bear.1 In jurisdictional systems that consist of a closed list of predetermined and relatively rigid jurisdiction-conferring provisions, enabling a court to assert its jurisdiction on grounds of necessity means extending the authority of that court beyond its ordinary boundaries. The reason for such an extension is that, in the peculiar circumstances of the case, dismissing the claim for want of jurisdiction would ultimately amount to a denial of justice. The aim is to fix the objectionable outcome of the operation of otherwise acceptable rules, whenever those rules would lead to a violation of the fundamental rights of the claimant to access a court. The corrective function performed by the described extension explains a peculiarity of forum necessitatis. Ordinary rules build on the ties that exist between the subject matter of the dispute, or the litigants, and the forum. In contrast, the rules that enable a court to adjudicate a case because it appears ‘necessary’ to do so, apply where those ties do not exist in the circumstances, or are not as intense as it would normally be required to justify the jurisdiction of local courts. The rules in question direct the seised court to look at the situation that exists in the other country, or countries, with which the case is connected, and see whether the plaintiff could reasonably bring, or continue, his proceedings there. Otherwise stated, when it comes to jurisdiction based on necessity, what matters is not so much the benefit that would result from the case being adjudicated

1 On necessity as a head of jurisdiction, see generally, in recent literature, S Redfield, ‘Searching for Justice: The Use of Forum Necessitatis’ (2014) 45 Georgetown Journal of International Law 893; and R Cafari Panico, ‘Forum Necessitatis: Judicial Discretion in the Exercise of Jurisdiction’ in F Pocar, I Viarengo and FC Villata (eds), Recasting Brussels I (Padova, Cedam, 2012) 127.

326  Pietro Franzina by the court whose jurisdiction is at issue (on account of its proximity to the case, etc.), but rather the shortcomings of litigation brought elsewhere.

II.  The Relevant Provisions in EU Private International Law Necessity as a basis of jurisdiction made its appearance in EU private international law with the adoption of the Maintenance Regulation. According to Article 7, where no court of a Member State has jurisdiction pursuant to the other provisions of the Regulation, ‘the courts of a Member State may, on an exceptional basis, hear the case if proceedings cannot reasonably be brought or conducted or would be impossible in a third State with which the dispute is closely connected’, provided that the dispute has ‘a sufficient connection with the Member State of the court seised’. An almost identical provision can be found in Article 11 of the Succession Regulation, and, with a slightly more elaborate wording, in Article 11 of the Matrimonial Property Regimes Regulation and the Regulation on the Property Consequences of Registered Partnerships.

A.  The Three Basic Features of Forum Necessitatis in EU Legislation In the four texts, necessity provides a residual ground on which jurisdiction can be asserted on an exceptional basis, provided that the matter is sufficiently connected with the Member State whose courts are seised. Jurisdiction based on necessity is ‘residual’ in the sense that necessity can serve as a head of jurisdiction only if it is established that no court in a Member State would normally be entitled to hear the case. Put otherwise, necessity does not bear the same weight as other jurisdictional bases, and only comes into play where no other bases can be relied upon across the European judicial area. The operation of forum necessitatis is ‘exceptional’, according to the preferred view, in the sense that the seised court must assess, under a strict test, whether, the exercise of jurisdiction would be the appropriate response to a serious demand for justice, which would otherwise remain frustrated.2 Assessing whether asserting jurisdiction is a necessity clearly involves a significant amount of discretion on the part of the seised court. In exercising that discretion, the court must proceed with caution, as the court-centred logic of forum necessitatis departs from the usual legislator-centred approach based on abstract and rigidly predetermined connections.

2 cf, among others, P Franzina, ‘Sul forum necessitatis nello spazio giudiziario europeo’ (2009) 92 RDI 1121, 1122 f, and G Rossolillo, ‘Forum necessitatis e flessibilità dei criteri di giurisdizione nel diritto internazionale privato nazionale e dell’Unione Europea’ (2010) 2 CDT 403, 405. See, however, for a different reading, J Parker in Baldwin v Baldwin [2014] EWHC 4857 (Fam) at www.bailii.org, suggesting that the word ‘exceptional’ in Art 7 of the Maintenance Regulation means ‘by way of exception’, not ‘extraordinary’.

Forum Necessitatis  327 A dispute has a ‘sufficient connection’ with the forum only if it appears that the ties between the case and the country whose courts have been seised are not ephemeral or illusory. Additionally, the country in question must be a plausible venue for litigation. As stated in Recital 16 of the Maintenance Regulation, the ‘sufficient connection’ test may be deemed to be satisfied, for example, where the case is brought before the courts of the state of ‘nationality of one of the parties’. Here, again, the court seised of the matter enjoys broad discretion. The court seised decides whether the particular ties that bind the case to the forum should have a bearing on the issue of jurisdiction (the nationality of the parties, the fact that the parties have personal, financial or social interests in the forum, etc), and assesses whether these ties feature the required degree of intensity.3 The latter element distinguishes the concept of forum of necessity from the doctrine of universal civil jurisdiction. Under the latter doctrine, taken in its absolute form, jurisdiction should be asserted, regardless of any connection – personal or objective – between the case and the forum.4

B.  Necessity as a Ground of Jurisdiction Outside the Measures that Explicitly Refer to it The remaining EU legislative measures which set forth rules on jurisdiction fail to explicitly contemplate a similar opportunity. The Brussels IIa Regulation does not provide for a forum necessitatis. As a matter of principle, however, necessity may serve as a ground of jurisdiction in matrimonial matters and in matters relating to parental responsibility whenever the domestic rules of the Member State whose courts are seised so provide, provided, at the outset, that the conditions set forth in Article 7 and in Article 14, respectively, have been complied with.

III.  Domestic Case Law Relating to Forum of Necessity The information collected in the framework of the EUFam’s Project suggest that necessity is very seldom relied upon for jurisdictional purposes in cross-border disputes concerning family relationships. Arguably, this reflects the fact that ordinary rules of jurisdiction already provide claimants with a broad opportunity to have their case heard in a Member State. At the same time, potentially interested claimants presumably believe that Member States courts would apply the ‘necessity test’ in a stringent manner,

3 According to Art 2.3 of the Sofia Guidelines on Best Practices for International Civil Litigation for Human Rights Violations, adopted by the International Law Association in 2012 at www.ila-hq.org, a sufficient connection may consists in particular in: ‘(a) the presence of the claimant; (b) the nationality of the claimant or the defendant; (c) the presence of assets of the defendant; (d) some activity of the defendant; or (e) a civil claim based on an act giving rise to criminal proceedings in the court seized of those proceedings, to the extent that that court has jurisdiction under its own law to entertain civil proceedings’. 4 Institut de droit international, ‘Universal Civil Jurisdiction with Regard to Reparation for International Crimes’ (Rapporteur A Bucher) para 181, at www.idi-iil.org.

328  Pietro Franzina and would be ready to entertain a case on grounds of necessity only in exceptional cases, as required by the pertinent provisions.5 Two judgments have been reported where the rule on forum necessitatis, as laid down in the Maintenance Regulation, has been specifically considered.

A.  The 2014 Ruling of the High Court of England and Wales On 14 March 2014, the Family Division of the High Court of England and Wales gave its decision in the case of Baldwin v Baldwin.6 The case concerned an English husband and an Ethiopian wife who had married in Dubai, where they had been living until their marriage broke down. The husband then started divorce proceedings in England and moved to Indonesia. The wife, who had also left Dubai, did not challenge the jurisdiction of English courts regarding divorce, and claimed maintenance from the husband for herself and the couple’s child. For his part, the husband challenged the jurisdiction of English courts with respect to the claim for maintenance on the ground of Article 3 of the Maintenance Regulation. The High Court held, to the contrary, that English courts were entitled to hear the case. For this, it referred, inter alia, to Article 7. It rejected the argument, advanced by the husband, that the wife’s claim could and should be litigated in Dubai, in Indonesia, or in Ethiopia. The Court found that: (a) the wife could not litigate in Dubai, since she was no longer resident there and was not entitled to enter that country without a visa (which had been cancelled, and could only be obtained with financial resources that the wife was lacking); (b) Indonesia did not have a close connection with the parties and the case; and (c) Ethiopia had no closer connection with the parties than England. The High Court concluded, based on the way in which the husband had conducted himself in respect of the dispute, that the husband’s ‘main concern about maintenance is to inhibit the ability of the wife to litigate’, while ‘trying to starve the wife out of her capacity to run legal proceedings in this jurisdiction’. The Court finally held that ‘the difficulties for the wife litigating effectively in any other jurisdiction now, in the circumstances in which she finds herself, would be immense and insurmountable’, so much so that it would be ‘wholly unreasonable to expect her to do so’.

B.  The 2015 Ruling of the Federal Supreme Court of Germany The Bundesgerichtshof dealt with Article 7 of the Maintenance Regulation in a judgment of 14 October 2015.7 The case concerned family support claimed by a US resident from a debtor whose habitual residence was in Germany.

5 See already L Walker, Maintenance and Child Support in Private International Law (Oxford/Portland, Hart Publishing, 2015) 68: ‘It seems unlikely that [Art 7 of the Maintenance Regulation] will be used very often’. 6 Baldwin v Baldwin [2014] EWHC 4857 (Fam) (n 2). 7 BGH, 14 October 2015, XII ZB 150/15, DET20151014.

Forum Necessitatis  329 The German courts seised of the matter had asserted their jurisdiction over the claim based on Article 3(a) of the Maintenance Regulation (jurisdiction at the place ‘where the defendant is habitually resident’). The claim was successful as to its substance, and the defendant was ordered to provide support in the form of periodic payments. The debtor subsequently sought to amend the amount of the allowance. For this, as required by the relevant German rules of civil procedure, namely § 240 of the German law on procedure in family matters and in matters of non-contentious jurisdiction,8 the debtor initiated separate proceedings against the maintenance creditor aimed at modifying the allowance. However, the German court seised of the latter proceedings found that it lacked jurisdiction, pursuant to Article 3 of the Maintenance Regulation, and that no other provision in the Regulation allowed the matter to be decided in Germany. The Federal Supreme Court overturned this finding and held that German courts possessed jurisdiction because the claimant would have likely been unable to obtain the amendment of an allowance granted in Germany from a court in the United States. US courts regard this kind of claims as belonging to the continuing exclusive jurisdiction of the courts which initially ruled on the allowance. In the view of the Bundesgerichtshof, this was enough to call Article 7 of the Maintenance Regulation into question. The court relied on the latter provision to conclude that the request for amendment could be dealt with in Germany, noting that the proceedings for the modification of the allowance featured ‘a sufficient connection’ with Germany for the purposes of the Regulation.

C.  Other Situations where Jurisdiction may be Asserted on Grounds of Necessity The situations considered in these rulings, albeit peculiar in some respects, largely fit in the typical scenarios in which, according to scholars, necessity may serve as a jurisdictional basis. Bringing proceedings in the third country with which the case is closely connected could prove impossible, or unreasonable, in three circumstances: (a) where, as in the case decided by the Federal Supreme Court of Germany, the courts of the third country in question would presumably decline jurisdiction, or have already ruled that they will not entertain the claim; (b) where the claim, though within the jurisdiction of the courts of the relevant third country, would be regarded by those courts as inadmissible on a point of law; and (c) where, due to special circumstances in the third country in question, the claimant would be prevented from instituting or conducting judicial proceedings before the courts of that country, or it would be unreasonable for the claimant to do so (eg, because evidence exists that local courts are not impartial, would be hostile to the claimant, or because – as in the case considered by the English High Court – the claimant would experience insurmountable practical difficulties if litigation were to occur elsewhere).9 8 ‘Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit’. 9 See generally, and for further references, F Marongiu Buonaiuti, ‘Article 11’ in AL Calvo Caravaca, A Davì and HP Mansel (eds), The EU Succession Regulation (Cambridge, CUP, 2016) 199, 203 ff.

330  Pietro Franzina

IV.  Concluding Remarks Forum of necessity is intended to provide Member States’ courts with the flexibility they might need to avoid a denial of justice. Although it serves as a tool of last resort, to be used in exceptional circumstances, forum necessitatis reflects the special role that human rights concerns are called upon to play in the design of EU rules of private international law.10 While the practical relevance of necessity as a ground of jurisdiction remains limited, as shown by the small number of reported cases, the existence of legislation providing for the possibility of relying on that ground appears significant. In addition to paving the way to further rulings from Member States’ courts, the EU provisions on forum necessitatis may have an impact, no matter how gradually, on international practice outside the Union. The Grand Chamber of European Court of Human Rights held, in Naït-Liman v Switzerland, that ‘an international custom rule enshrining the concept of forum of necessity’ cannot be deemed to exist.11 This holding reflects the fact that, today, the concept of a forum of necessity is not generally accepted by the states. This suggests that further developments at the European level (and elsewhere, along the same lines) could eventually lead to the consolidation of a customary rule permitting, if not indeed requiring, courts to assert their jurisdiction – in appropriate circumstances – where respect for human rights so demands.

10 On the relevance of human rights considerations to private international law, see generally LR Kiestra, The Impact of the European Convention on Human Rights on Private International Law (The Hague, Asser Press, 2014), and JJ Fawcett, M Ní Shúilleabháin and S Shah, Human Rights and Private International Law (Oxford, OUP, 2016). 11 Naït-Liman v Switzerland, App No 51357/07 (ECtHR, 15 March 2018) para 201.

24 Interaction of the Brussels IIa and Maintenance Regulations with (Possible) Litigation in Non-EU States: Including Brexit Implications PAUL R BEAUMONT*

I. Introduction The two core EU family law Regulations, Brussels IIa and Maintenance, are not well designed to regulate their interaction with possible litigation in non-EU states. Neither Regulation provides for a general system whereby an EU court can decline to exercise jurisdiction in favour of a non-EU court because it was seised first (lis pendens) or on the basis that a non-EU court is a clearly more appropriate forum to hear the dispute (forum non conveniens) or on some combination of both concepts. However, Brussels IIb does respect lis pendens, and permits transfers of cases even by a court first seised, in relation to Contracting States to the 1996 Hague Convention on the Protection of Children. This short chapter will set out the position under both the Brussels IIa Regulation and the Maintenance Regulation, how this would be improved when the Brussels IIb Regulation enters into force, and finally suggest some improvements that the EU legislature should make to those Regulations in order to make EU Private International Law of Family Law a fair and just fit within the global world of Private International Law of Family Law.

* Paul Beaumont was a member of the UK team negotiating the Hague Maintenance Convention 2007 and the EU Maintenance Regulation 2009 and was appointed by the EU Commission as a member of its expert advisory group to help the Commission prepare its Recast proposal on Brussels IIa. However, anything said in this chapter is the personal opinion of the author and does not reflect the views of the UK government or of the EU Commission. The author is very grateful to Jayne Holliday and Katarina Trimmings for their helpful comments on an earlier version of this work, any errors or omissions remain the responsibility of the author. Before being edited for this book this chapter appeared as a Centre for Private International Law Working Paper No 2018/1, available at www.abdn.ac.uk/law/research/working-papers-455.php.

332  Paul R Beaumont

II. Maintenance A.  No Power to Decline or Transfer Jurisdiction in Favour of a Non-EU Court The Maintenance Regulation creates a comprehensive set of jurisdiction rules no matter where the parties are domiciled or habitually resident.1 However, it only creates rules for conflicts of jurisdiction between Member States. The result is that an EU court can be seised in circumstances where a clearly more appropriate forum exists to hear the case outside the EU, and that forum may indeed have been seised first but there is no mechanism under EU law for the court in the EU Member State to give up its jurisdiction in favour of the non-EU court. This problem was known to the negotiators of the Maintenance Regulation (the author of this chapter being one of them, representing the United Kingdom in the Council Working Party), but due to a political desire to get the Maintenance Regulation finalised the problem was not resolved.2 The gravity of this problem is well illustrated by the following hypothetical case. A maintenance creditor who is habitually resident in the United States brings proceedings against her spouse for maintenance for herself and for her two children. Spousal and child maintenance awards are relatively high value in the relevant US state. The spouses and children all have joint US and Bulgarian nationalities but have all been living together in the United States for many years. Shortly before the US court gives its judgment, the husband decides to seek to reduce his maintenance liability to his wife and children by launching proceedings in Bulgaria based on the common Bulgarian nationality of the parties (a legitimate EU basis of jurisdiction in this case under Article 6 of the Maintenance Regulation). The Bulgarian court has no mechanism under EU law to decline to exercise jurisdiction in this case. If the US court gives its judgment before the Bulgarian court, then at least the US judgment should be recognised and enforced in Bulgaria under the 2007 Hague Child Support Convention because the United States and EU are both parties to that Convention3 (see Article 22(c) and (d) of the Convention). However, if the fact scenario is changed slightly so that the couple and children are Bulgarian and Canadian nationals who have been living for a long time 1 For an excellent analysis of the Maintenance Regulation and of the 2007 Hague Child Support Convention see L Walker, Maintenance and Child Support in Private International Law (Oxford, Hart ­Publishing, 2015). 2 This is based on the author’s own work in the Council Working Party and the urgency to get the Regulation finalised is corroborated by the explanatory statement of 20 November 2008 of the European Parliament’s Rapporteur on this Regulation that: ‘The rapporteur is very happy that finally the revised version of the regulation on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations on which the European Parliament presented its opinion almost a year ago is presented. It is, however, a pity that we and more specifically the EU-Citizens have had to wait so long for this text. The rapporteur therefore decided to refrain from presenting amendments in order to have the final text available before the end of the year. It would make sure that EU-citizens could benefit from it as soon as possible.’ See www.europarl.europa.eu/sides/getDoc.do?type=REPORT&mode=XML&reference= A6-2008-456&language=EN. 3 For a current list of the Contracting States to the 2007 Hague Child Support Convention see www.hcch. net/en/instruments/conventions/status-table/?cid=131. As at 18 April 2020, 40 states and the EU are bound by the Convention.

Interaction of the Brussels IIa and Maintenance Regulations  333 in Canada and the wife/mother initiated proceedings in Canada, there is no guarantee under EU law that the Bulgarian courts will recognise and enforce the Canadian judgment rather than continue to reach their own judgment, because at present Canada is only a signatory to the Maintenance Convention. The same would apply were the parties linked to any non-EU state that is not a party to the Maintenance Convention.4 It is clear that the current EU regime creates an incentive for third states to ratify the 2007 Hague Child Support Convention, which is welcome. However, that incentive could be maintained and litigation efficiency and justice improved if a system like Articles 33 and 34 of the Brussels Ia Regulation were introduced into the Maintenance Regulation to allow the EU second seised court to decline jurisdiction in favour of the first seised non-EU court whenever this is good for the proper administration of justice taking into account the likelihood of the non-EU proceedings leading to a judgment that will be recognised and enforced in the EU State whose courts have been second seised. As illustrated above, if the third state is a party to the 2007 Hague Child Support Convention it is much easier to assess whether the judgment of the third state courts will be recognised and enforced in the EU state without needing to delve into the national law in that EU state concerning recognition and enforcement of non-EU maintenance judgments.

B.  (Partial) Respect for the Jurisdictional Obligations Accepted by the EU under the 2007 Lugano Convention and for those Accepted under the 2007 Hague Child Support Convention The comprehensive system of jurisdiction rules in the Maintenance Regulation takes account of the EU’s jurisdictional obligations under two international Conventions to which the EU is a party, but sadly not fully.

i.  2007 Lugano Convention The Maintenance Regulation only enables the EU to partially comply with its international law obligations under the 2007 Lugano Convention. The jurisdiction rule in the Maintenance Regulation on choice of court, Article 4, is more restrictive than its predecessor in the Brussels I Regulation and in the 2007 Lugano Convention (Article 23). Article 4(4) of the Maintenance Regulation gives way to Article 23 of the 2007 Lugano Convention where the parties have agreed to confer ‘exclusive’ jurisdiction on a non-EU Lugano Contracting State court,5 except in relation to a ‘dispute relating to a maintenance

4 It would be a matter for Bulgarian law to determine what effects it would give to a maintenance judgment from a non-EU state that is not a Contracting State to the 2007 Hague Child Support Convention in a case where the matter is pending before its own courts, because the Maintenance Regulation does not apply to this issue. Art 24(d) of the Maintenance Regulation only regulates the scenario where there is a clash between a maintenance judgment coming from another EU Member State and one coming from a non-EU state and gives priority to the latter where it is first in time unless the latter (EU judgment) is a modification decision. 5 At present these states are Iceland, Norway and Switzerland. Other states are interested in joining the 2007 Lugano Convention as non-EU Contracting States, notably Andorra and the United Kingdom.

334  Paul R Beaumont obligation towards a child under the age of 18’. It is very unfortunate that the EU unilaterally derogated from this provision of the 2007 Lugano Convention rather than abiding by the 2007 Lugano Convention in full until an opportunity arose for the 2007 Lugano Convention to be revised based on the consensus of all the Contracting Parties to the Convention. It does not augur well for the EU’s willingness to abide by its treaty obligations with its near neighbours. A future revision of the 2007 Lugano Convention should discuss the pros and cons of jurisdiction agreements in relation to maintenance obligations towards a child under the age of 18. It can make a lot of practical common sense for parents to be able to agree on one jurisdiction to resolve all their financial arrangements (spousal support and child support – ideally also other matters that might be classified in some jurisdictions as matrimonial property) especially if they have already reached an agreement on the substance and want that court to endorse the agreement.6 Another area of discrepancy between the 2007 Lugano Convention and the Maintenance Regulation is where the non-EU Lugano state has been seised on the basis of a non-exclusive jurisdiction clause in relation to adult maintenance. If the non-EU Lugano state is seised first, it should be given priority over any other court seised in a Lugano Contracting State due to the lis pendens rule in Article 27 of the 2007 Lugano Convention. However, a possible construction of Article 4(4) of the Maintenance Regulation is that for courts in EU Member States it overrides Article 27 of the 2007 Lugano Convention in a case where the non-EU Lugano court is first seised on the basis of a non-exclusive jurisdiction agreement. This seems to be wrong in principle, because even acceptable bases of non-exclusive jurisdiction in a non-EU Lugano Contracting State within the meaning of Article 4(1) of the Maintenance Regulation are not protected by the 2007 Lugano Convention lis pendens rule because of the wording of Article 4(4) of the Regulation. Therefore, it is surely for the EU to be open to finding a genuine agreed line on jurisdiction agreements in maintenance cases with its nearest neighbours who are non-EU Lugano Contracting States, rather than unilaterally imposing its own solution for its own courts by way of an EU Regulation in cases previously governed by the 2007 Lugano Convention. The EU must move away from this cavalier approach to its international law obligations.

ii.  2007 Hague Child Support Convention The 2007 Hague Child Support Convention does not have harmonised jurisdiction rules apart from one negative rule of direct jurisdiction found in Article 18.7 This negative rule requires, with a few exceptions, a maintenance debtor to go to the court of the On 8 April 2020 the UK deposited an application to accede to the Lugano Convention with the Swiss Federal Council. It will require the unanimous agreement of Denmark, Iceland, Norway, Switzerland and the UK under Article 72(3) of the Lugano Convention. 6 See the work of the Hague Experts’ Group on Family Agreements (at www.hcch.net/en/projects/ legislative-projects/recognition-and-enforcement-of-agreements) of which the author is the chair, and L Walker, ‘Party autonomy, inconsistency and the specific characteristics of family law in the EU’ (2018) JPIL 225. 7 See P Beaumont, ‘International Family Law in Europe – The Maintenance Project, the Hague Conference and the EC: A Triumph of Reverse Subsidiarity’ (2009) 73 RabelsZ 532–36.

Interaction of the Brussels IIa and Maintenance Regulations  335 habitual residence of the creditor in order to modify an existing maintenance decision or to seek a new maintenance decision if the original decision was taken by the courts of the habitual residence of the creditor and the creditor is still habitually resident there. Article 8 of the Maintenance Regulation is designed to ensure that EU courts comply with Article 18 of the Convention by not allowing EU debtors to invoke a jurisdiction in an EU court when a non-EU 2007 Hague Child Support Convention state has already given a maintenance decision when that court was, at the time of those proceedings, and still is, the place where the creditor habitually resides. However, the Maintenance Regulation is not designed to protect the freedom of adult parties to choose to go to a non-EU court, either in advance by a choice of court agreement8 or by one party submitting to the jurisdiction of the court selected by the other party,9 which is in a Contracting State to the 2007 Hague Child Support Convention, which is not the court where the maintenance creditor is habitually resident, when the original decision was given by a court in an EU Member State and the creditor is still habitually resident there. In other words, the EU is not respecting the party autonomy of adult parties to agree to go to the court of a non-EU Contracting State to the 2007 Hague Child Support Convention when an EU court has already ruled on maintenance between those adult parties and where the creditor was, at the time those proceedings were instituted in the EU court, and is, habitually resident in the EU state where the decision was made. The question of whether this is a breach of the EU’s obligations under the 2007 Hague Child Support Convention depends on whether one should only construe the main obligation under Article 18(1) of the Convention (not to allow a departure from the courts of the habitual residence of the creditor when those courts have already given a maintenance decision and the creditor is still habitually resident there) as binding on Contracting States or whether those states are also bound to give full effect to the exceptions to the obligation which are found in Article 18(2). A strong case can be made for arguing that from an international law point of view the exceptions are permissive (despite being drafted in mandatory language) because they were designed to allow states to depart from the clear obligation created by Article 18(1), in certain limited cases, but not to create new obligations on Contracting States to accept prorogation or submission jurisdiction (only in cases where another court has already ruled on a maintenance obligation). However, from a policy point of view it seems unfair, and potentially unjust, to allow parties to agree to move away from the courts of the habitual residence of the creditor (whether in the EU or in a non-EU Hague Contracting State) to an EU court by prorogation or submission but not to do so when the parties want to move away from an EU court that is the habitual residence of the creditor to prorogate or submit to a non-EU court that is a Contracting State to the 2007 Hague Child Support Convention. It is worth noting that if the United Kingdom and the EU are not able to agree, or decide not to agree a special deal on civil judicial cooperation relating to maintenance, it is clear that the United Kingdom will become a party to the 2007 Hague Child Support 8 See Art 18(2)(a) of the 2007 Hague Child Support Convention compared to Art 8(2)(a) of the Maintenance Regulation. 9 See Art 18(2)(b) of the 2007 Hague Child Support Convention compared to Art 8(2)(b) of the Maintenance Regulation.

336  Paul R Beaumont Convention and the Convention will, in principle, govern the relationship between the United Kingdom and the EU on maintenance.10

III.  Brussels IIa A. Divorce The Brussels IIa Regulation provides for rules of jurisdiction and conflicts of jurisdiction for cross-border divorce cases. However, the rules on divorce jurisdiction do not allow for any means of declining jurisdiction in favour of a non-EU court even when that court is first seised (lis pendens) or clearly is more appropriate to deal with the divorce (through forum non conveniens or a transfer mechanism). The Brussels IIter Proposal from the Commission did not touch upon divorce jurisdiction. This unwillingness to tackle the topic is partly because it is difficult to agree on a hierarchy of jurisdiction for divorce cases or to agree on how any transfer mechanism, even between EU courts, would operate in divorce cases. It is also because the issue of divorce for same-sex couples is particularly controversial in certain parts of the EU, and if that issue had been on the table in the Brussels IIa Recast negotiations, it might have prevented the necessary unanimity in the Council from being arrived at. It is unfortunate that at least something like Articles 33 and 34 of Brussels Ia was not proposed for the Recast of Brussels IIa. Under such a system, where divorce proceedings have already been commenced in a non-EU court these could be given way to by a second seised EU court if this is good for the ‘proper administration of justice’, taking into account whether the foreign court’s divorce ruling would be recognised in the country of the EU court. Of course, in the real world, the issues in a divorce case before a court in an EU Member State do not usually turn on what is within the scope of Brussels IIa, deciding on jurisdiction to grant a divorce and recognition and enforcement in another Member State of the divorce itself. Rather they are usually centred on what are euphemistically referred to as ‘ancillary matters’, ie, the finance, property, and the custody and access in relation to any children. The jurisdiction in relation to these ancillary matters to divorce is regulated by the parental responsibility provisions in Brussels IIa, by the maintenance provisions in the Maintenance Regulation and by, in the EU Member States that have chosen to be party to them, the enhanced cooperation instruments on property matters between spouses and between registered partners. These other instruments give a place 10 See P Beaumont, ‘Private international law concerning children in the UK after Brexit: comparing Hague Treaty law with EU Regulations’ (2017) Child&FamLQ 228–230. Of course if the United Kingdom also remains a party to the 2007 Lugano Convention post-Brexit (which is the aim of the UK government, see n 5), then the 2007 Lugano Convention rules will apply to jurisdiction in maintenance cases, apart from matters covered by Art 18 of the 2007 Hague Child Support Convention which is the only rule of jurisdiction in the Hague Convention. The 2007 Lugano Convention gives way to Conventions on particular matters like the 2007 Hague Child Support Convention (see Art 67 of the 2007 Lugano Convention), for jurisdiction and recognition and enforcement of judgments, so the Hague Convention should apply to recognition and enforcement of judgments. It will also apply to legal aid and administrative cooperation through Central Authorities because these matters are not regulated by the 2007 Lugano Convention. However, sadly, there are still three Lugano Contracting States that are not yet party to the 2007 Hague Child Support Convention, ie Denmark, Iceland and Switzerland.

Interaction of the Brussels IIa and Maintenance Regulations  337 to the divorce jurisdiction rules so the Brussels IIa divorce jurisdiction rules can usually be utilised to resolve the ancillary matters.11 The global context for divorce is a relatively unsuccessful 1970 Hague Divorce Convention.12 The United Kingdom is a party to this Convention and therefore after the end of the post-Brexit implementation period (ie after 31 December 2020), in the event that no deal is done on recognition and enforcement of divorce judgments between the EU and the United Kingdom, the 1970 Hague Divorce Convention will provide a framework for recognition of some divorces and legal separations. The Convention should apply between the following EU Member States: Cyprus, Czech Republic, Denmark, Estonia, Finland, Italy, Luxembourg, Netherlands, Poland, Portugal, Slovakia and Sweden – and the United Kingdom.13 In relation to the other 15 EU Member States, recognition of UK divorces and legal separations would rely on the unilateral rules on recognition and enforcement of foreign divorces in each of those states. It does not seem likely that this will give rise to any problems in practice apart perhaps from recognition of divorces in relation to same-sex marriages or partnerships (however, it is not clear how those issues are handled under Brussels IIa anyway).14 It is unfortunate that EU Member States did not agree to ratify the 1970 Hague Divorce Convention as a minimum standard for its dealings with third states before embarking on the predecessor to Brussels IIa in order to go further in dealing with jurisdiction and recognition and enforcement of divorce judgments within the EU.15 It would be highly beneficial if the EU were to reconsider its position on divorce and agree to mandate (or at 11 However, if proceedings are pending concerning divorce in one EU Member State and concerning parental responsibility in another EU Member State, it is only the latter court that is competent to adjudicate on child maintenance as an ancillary matter, see Case C-184/14 A v B EU:C:2015:479. Art 5 of the Matrimonial Property Regimes Regulation also presents constraints on some of the heads of divorce jurisdiction in the Brussels IIa Regulation. The Regulation on the Property Consequences of Registered Partnerships does not link to the Brussels IIa divorce jurisdiction rules expressly but instead Art 5 simply states that: ‘Where a court of a Member State is seised to rule on the dissolution or annulment of a registered partnership, the courts of that State shall have jurisdiction to rule on the property consequences of the registered partnership arising in connection with that case of dissolution or annulment, where the partners so agree’. This requirement of the partners having to agree, in all cases, to the jurisdiction of the court seised with the dissolution or annulment of their registered partnership before it can deal with property matters makes it a narrower jurisdiction than Art 5 of the Matrimonial Property Regimes Regulation which only requires an agreement between the parties in some cases. 12 The 1970 Hague Divorce Convention, to which there were 20 Contracting States on 25 February 2020. See www.hcch.net/en/instruments/conventions/status-table/?cid=80. The non-EU Contracting States are: Albania, Australia, China (for Hong Kong only), Egypt, Moldova, Norway, Switzerland and the United Kingdom. 13 However, at present the United Kingdom has not accepted the accessions of Estonia and Poland and therefore UK divorces may not be recognised in those countries under the Hague Convention even though they would be in the United Kingdom, which applies the rules implementing the Hague Convention to all foreign divorces on a non-reciprocal basis. See J Holliday, ‘The urgent need for the UK to accept the accessions of EU and Non-EU Contracting Parties to the 1970 Hague Convention on Recognition of Divorces and Legal Separation’ (Working Paper 2019/1), www.stir.ac.uk/about/faculties/arts-humanities/law-and-philosophy/ law-research/law-working-papers/. 14 See eg the brief discussion of whether Brussels IIa applies to same-sex divorces or same-sex ­registered partnerships in P Beaumont and P McEleavy, Anton’s Private International Law, 3rd edn (Edinburgh, W Green/SULI, 2011) 769–70 and 779–82. 15 Neither France nor Germany had ratified the Hague Divorce Convention and did not see it as a solution for the problems they had between themselves in this field. For a discussion of the history of this matter see P Beaumont and G Moir, ‘Brussels Convention II: A New Instrument in Family Matters for the European Union or the European Community’ (1995) 20 EL Rev 268, and a rebuke for the failure to respect reverse subsidiarity and an exhortation for all EU Member States to ratify the Hague Divorce Convention at 284. Of course, since the adoption of Brussels II the external competence to ratify the Hague Divorce Convention

338  Paul R Beaumont least encourage) its Member States that are not Contracting States to the 1970 Hague Divorce Convention to become Contracting States to that Convention. This in turn would breathe new life into the 1970 Hague Divorce Convention and persuade more non-EU states to become party to it. The Convention is not moribund, as Albania and Moldova have become parties to it since 2011. If some EU Member States really still have substantive concerns with the 1970 Hague Divorce Convention that prevent them from ratifying it, then it could be a good initiative from the EU to ask for the issue of divorce to be reopened at The Hague.16 Janeen Carruthers and Elizabeth Crawford have provided a lively and entertaining internal debate between themselves in an article considering the relative merits of retaining something like Brussels IIa between the United Kingdom and the EU or falling back on the 1970 Hague Divorce Convention.17 The present author’s view is that the latter is a better course for the United Kingdom and the EU to follow. The problem with Brussels IIa is that it combines quite broad rules of jurisdiction with a rigid lis pendens system for conflicts of jurisdiction. This means that both the husband and wife have quite significant opportunities to forum shop, and they both have an incentive to launch divorce proceedings quickly in order to make sure that the divorce, and crucially the ancillary relief, is decided in their preferred forum. Surely it is better to encourage marriages to be saved, or if they have to be dissolved, to do it in a civilised way where the financial arrangements are agreed between the spouses or determined by the courts in a country with which the marriage had a close connection? Elsewhere the author has written with others about the problem of England and Wales being the ‘venue of choice for high value matrimonial disputes’, particularly for women, even when the marriage has a very thin connection with England and Wales, and about the tendency for husbands to initiate divorce proceedings elsewhere in the EU to try to reduce their maintenance liability to their wives even when the marriage has a strong connection with England and Wales.18 Ideally, in a post-Brexit framework the UK courts will be able to reduce the ‘magnet effect of high financial provision after divorce for women in England and Wales if the English courts could return to the practice of being able to decline jurisdiction on the basis of forum non conveniens’.19 Indeed, post-Brexit Brussels IIa should be reformed to prevent husbands running away from their marriage in England (or the United States) to the country of their nationality (even though it may also be the nationality of their wife) in an EU Member State to get a divorce.20 It should has shifted to the EU. On external competence of the EU in private international law see P Franzina (ed), The External Dimension of EU Private International Law After Opinion 1/13 (Cambridge, Intersentia, 2017). 16 Of course the concerns over same-sex marriages in some EU Member States, which prevented the EU Commission from proposing changes to the divorce provisions in Brussels IIa in the Recast of Brussels IIa, probably make it difficult in the near future for the EU to make any proposals on divorce in The Hague. 17 See JM Carruthers and EB Crawford, ‘Divorcing Europe: reflections from a Scottish perspective on the implications of Brexit for cross-border divorce proceedings’ (2017) Child & Fam LQ 233. 18 See P Beaumont, M Danov, K Trimmings and B Yüksel, ‘Great Britain’ in same authors (eds), Cross-Border Litigation in Europe (Oxford, Hart Publishing, 2017) 79, 95–98. For a spectacular case example see S v S [2014] EWHC 3613 (Fam) which became Case C-489/14 A v B EU:C:2015:654 and see also Case C-184/14 A v B (n 11). 19 See P Beaumont et al, ibid 123. For an early, and still relevant, analysis of how forum non conveniens operates in divorce cases in England and Wales see PR Beaumont, ‘Conflicts of jurisdiction in Divorce Cases: Forum Non Conveniens’ (1987) 36 ICLQ 116. 20 The problematic jurisdictions in Art 3 of Brussels IIa are: (a) nationality of one spouse and that person’s habitual residence in the country of their nationality for the last six months; and (b) nationality of both spouses.

Interaction of the Brussels IIa and Maintenance Regulations  339 be possible for the EU court to decline jurisdiction in favour of the non-EU court, at least where the EU court is seised second but ideally even where the EU court is seised first, if the non-EU court is clearly a more appropriate forum to determine the divorce and deal with ancillary relief given the much stronger connection between the marriage and the non-EU forum than the EU forum. In order to avoid wasted costs on satellite litigation, the bar for judges upholding a forum non conveniens plea should be set high so that it is only upheld in clear cases of forum shopping where one party is running away from the forum that the marriage was strongly connected to.

B.  Parental Responsibility In the area of parental responsibility the problems are not so great because the EU has accepted that the 1996 Hague Convention on the Protection of Children is part of the EU acquis communautaire.21 Therefore, in relations between EU Member States and non-EU Hague Contracting States to the 1996 Hague Convention on the Protection of Children there is a system based on transfer of jurisdiction that enables the court that is best placed to determine the best interests of the child to hear the case, whether it is an EU Member State court or a non-EU Contracting State and regardless of which court is seised first. The relevant provisions are found in Articles 8 and 9 of the 1996 Hague Convention on the Protection of Children.22 In cases where no transfer is agreed or sought, there is the fall-back position of lis pendens between all Contracting States to the 1996 Hague Convention on the Protection of Children in Article 13. However, the current Article 61 of Brussels IIa restricts the application of the 1996 Hague Convention on the Protection of Children whenever ‘the child concerned has his or her habitual residence on the territory of a Member State’. This is too big a disconnection from the Hague Convention as it means the transfer provisions of Articles 8 and 9 are much more restrictive than they should be. The main purpose of those provisions is to allow the transfer of a parental responsibility case from the courts of the habitual residence of the child to the courts of another country because in that particular case the latter courts are better placed to determine the best interests of the child. This point is rectified by the Brussels IIb Regulation at Article 97(2).23 21 See Council Decision of 19 December 2002 authorising the Member States, in the interest of the Community, to sign the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children (2003/93/CE) [2003] OJ L48/1; Council Decision of 5 June 2008 authorising certain Member States to ratify, or accede to, in the interest of the European Community, the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children and authorising certain Member States to make a declaration on the application of the relevant internal rules of Community law (2008/431/EC) [2008] OJ L151/36; and the statement in EU acquis and policy documents on the rights of the child (Brussels, Commission, 2016) that the 1996 Hague Convention on the Protection of Children is part of the EU acquis that states acceding to the EU must become party to, at 67; see https://ec.europa.eu/info/sites/info/files/euacquisandpolicydocumentsontherightsofthechild_4.pdf. 22 Elsewhere the author has made a detailed comparison between those provisions and the provision for transfer of cases between the courts in EU Member States in Art 15 of Brussels IIa. See P Beaumont (n 10) 217–22. 23 EU Reg 2019/1111, [2019] OJ L178. It also makes an exception to the priority of Brussels IIa over the 1996 Hague Convention on the Protection of Children, when the child is habitually resident in an EU Member

340  Paul R Beaumont

C.  Child Abduction In principle Brussels IIa does not apply to cases concerning a wrongful removal or retention of a child where one of the countries involved is a non-EU Contracting State to the 1980 Hague Child Abduction Convention. In such cases it is the 1980 Hague Child Abduction Convention that applies as part of the EU’s acquis communautaire of dealing with non-EU Contracting States. The EU requires any Member State of the EU to be a Contracting State to the 1980 Hague Child Abduction Convention (it is not possible under that Convention for the EU itself to become a Party to it). Furthermore, the Court of Justice of the European Union has established that, the question of whether the accession of a non-EU Contracting State (a third state) to the 1980 Hague Child Abduction Convention should be accepted for the purposes of applying the Convention between an EU state and that third state, falls within the exclusive external competence of the EU.24 Therefore, the EU Member States have to achieve unanimity in the Council before they accept the accession of new Contracting States to the 1980 Hague Child Abduction Convention creating legal relations under the Convention between EU Member States and the acceding non-EU state. Individual EU Member States can no longer accept on their own the accession of a third state to create binding legal obligations under the 1980 Hague Child Abduction Convention with that third state.25 The decision of the Court of Justice in Opinion 1/13 is based on the idea that an EU Member State may ‘affect common [EU] rules or alter their scope’ by accepting the accession of a non-EU Contracting State to the 1980 Hague Child Abduction Convention. The Court is not explicit about how such an acceptance could affect the common EU rules found in the Brussels IIa Regulation but asserts that it ‘may’. One reason for doing so is based on the assertion that if EU law ‘largely covers the area’ then effectively EU law is deemed to cover the whole area because it is assumed that any external action by an EU Member State in that whole area (which EU law is regarded as largely covering) could affect the EU law rules or alter their scope. The problem is that Brussels IIa does not, objectively, largely cover the area of international child abduction, because it only applies to child abductions between EU Member States, and even then only to the judicial cooperation element and not the administrative cooperation element through Central Authorities.26 In reality, accepting the accession of a non-EU State, where: (a) the parties have agreed on a choice of a non-EU court in a 1996 Hague Convention on the Protection of Children Contracting State in accordance with Art 10 of that Convention; and (b) where a non-EU court in a 1996 Hague Convention on the Protection of Children Contracting State is still seised of a case in accordance with Art 13 of that Convention. For a more detailed analysis of these issues under Brussels IIa see P Beaumont, L Walker and J Holliday, ‘Parental responsibility and international child abduction in the proposed Recast of Brussels IIa Regulation and the effect of Brexit on future child abduction proceedings’ (2016) IFL 307 and in a slightly updated form in P Beaumont, L Walker and J Holliday, Centre for Private International Law, University of Aberdeen, Working Paper No 2016/6 Parental Responsibility and International Child Abduction in the proposed recast of Brussels IIa Regulation and the effect of Brexit on future child abduction proceedings at ‘H’. 24 Case Opinion 1/13 EU:C:2014:2303. 25 On all these issues see Franzina (n 15), especially P Beaumont, ‘A Critical Analysis of the Judicial Activism of the Court of Justice of the European Union in Opinion 1/13’ 43 and K Vandekerckhove, ‘­Consequences of Opinion 1/13 on the acceptance in the EU of accessions to the Hague Child Abduction Convention’ 71. 26 See Beaumont, ibid, 54–57.

Interaction of the Brussels IIa and Maintenance Regulations  341 Contracting State to the 1980 Hague Child Abduction Convention has an impact only on administrative and judicial cooperation between the EU Member State and the third State, it does not impact on the judicial cooperation between EU Member States on child abductions between those states. The judge in an EU Member State dealing with a Brussels IIa child abduction case is almost never going to be affected by any obligations his state has taken on by accepting the accession of a third state to the 1980 Hague Child Abduction Convention. The reason is that the child nearly always has one habitual residence, an exception might be where a child is living either side of a border for part of each week,27 for the purposes of Brussels IIa and the 1980 Hague Child Abduction Convention. Thus it is almost impossible to envisage a clash between the two instruments arising before a judge who has to apply the Brussels IIa provisions on child abduction. If the child has no habitual residence, neither instrument applies; if the child has his or her habitual residence in an EU Member State, the Brussels IIa Regulation applies; and if the child has his or her habitual residence in the third state, then the 1980 Hague Child Abduction Convention applies.28 Thus, once it is established that the impact of the operation of the 1980 Hague Child Abduction Convention between a non-EU Contracting State and an EU Member State on the application of Brussels IIa is essentially theoretical (if not imagined solely to achieve EU external competence), the reality is that no special provisions are needed in Brussels IIa to ensure that EU Member States comply with their obligations under the 1980 Hague Child Abduction Convention to non-EU Contracting States. Thus, if no special post-Brexit deal is done between the United Kingdom and the EU on child abduction, the 1980 Hague Child Abduction Convention will immediately apply in the relations between the United Kingdom and each EU Member State. The United Kingdom long ago ratified the 1980 Hague Child Abduction Convention29 and once the post-Brexit implementation period has expired, the Convention will automatically operate between the United Kingdom and EU Member States. The latter have no option to consider whether or not to accept the accession of the United Kingdom to the Convention because that does not apply to the United Kingdom as one of the original negotiators of the Convention that has exercised its right to ratify it and create automatic binding relations between the United Kingdom and any other ratifying state and to create binding relations between the United Kingdom and any acceding state the United Kingdom chooses to accept.30 The effect of Brexit (without a deal keeping Brussels IIa or a comparable arrangement in place) on child abduction law will be to remove the application of the Article 11 Brussels IIa override system31 from UK law. Given the empirical findings in the Nuffield Foundation funded research32 on that override system, which

27 See P Beaumont and P McEleavy, The Hague Convention on International Child Abduction (Oxford, Oxford University Press, 1999) 110–111. 28 For the refutation of the Court’s assertions of impact on Brussels IIa in relation to the cooperation of Central Authorities see Beaumont, 58–59. 29 20 May 1986 see www.hcch.net/en/instruments/conventions/status-table/?cid=24. 30 See Beaumont (n 10) 214–15 and Arts 37 and 38 of the 1980 Hague Abduction Convention. 31 Art 11(6)–(8). 32 See ‘Conflicts of EU Courts on Child Abduction’ including comprehensive information in relation to all the EU Member States apart from Denmark available at www.abdn.ac.uk/law/research/conflicts-of-eucourts-on-child-abduction-417.php.

342  Paul R Beaumont led the author and his colleagues who worked on that research to recommend the abolition of that system,33 this would be a welcome outcome.34

IV. Conclusion This chapter has shown that the EU takes some account of its obligations to non-EU states that are parties to Conventions which are part of EU law or part of the EU acquis communautaire (notably the limitation on debtors under Article 18 of the 2007 Hague Child Support Convention, the maintenance jurisdiction provisions under the 2007 Lugano Convention, and the parental responsibility provisions under the 1996 Hague Convention on the Protection of Children). However, in each of these cases the compliance by the EU with its, or its Member States’, obligations under those international Conventions is imperfect. It is positive that the Brussels IIb Regulation contains provisions that will rectify the imperfect compliance by the EU with the 1996 Hague Convention on the Protection of Children. It is reasonable for the EU only to create respect for prorogation clauses and first seised proceedings in non-EU states that are Contracting States to the 1996 Hague Convention on the Protection of Children, and only to consider the transfer of cases outside the EU to 1996 Hague Convention on the Protection of Children Contracting States. This has the desirable effect of encouraging non-EU states to ratify or accede to the 1996 Hague Convention on the Protection of Children and thereby promote the progressive unification of private international law globally.35 The EU should also actively encourage the reform of the 2007 Lugano Convention to bring alignment with the EU rules on maintenance jurisdiction or to take maintenance out of the scope of the 2007 Lugano Convention by getting all the non-EU Lugano states to ratify the 2007 Hague Child Support Convention and then all Lugano states agreeing to remove maintenance from the scope of the 2007 Lugano Convention. The latter solution would be preferable and it is to be hoped that Iceland and Switzerland will soon ratify the 2007 Hague Child Support Convention. When the Maintenance Regulation is reformed, the EU should give full effect to the exceptions (in Article 18(2) of the 2007 Hague Child Support Convention) to the obligation on maintenance debtors to only sue the maintenance creditor in the habitual residence of the creditor (in Article 18(1) of the 2007 Hague Child Support Convention) in relation to any party who is habitually resident in a non-EU Hague Contracting State. However, there are areas where the EU should review its internal rules as they impact on the same issues being determined in non-EU states in cases where there is no

33 See P Beaumont, L Walker and J Holliday, ‘Conflicts of EU courts on child abduction: the reality of Article 11(6)–(8) Brussels IIa proceedings across the EU’ (2016) 12 JPIL 211. 34 See Beaumont (n 10) 215–17 and 231–32. 35 The EU has a similar incentive plan in the Brussels Ia Regulation to encourage non-EU states to ratify the 2005 Hague Choice of Court Agreements Convention in order for the EU courts to decline jurisdiction in favour of a non-EU chosen court that is seised after an EU Member State court is seised. See P Beaumont, ‘The revived Judgments Project in The Hague’ (2014) 4 NedIPR 535.

Interaction of the Brussels IIa and Maintenance Regulations  343 relevant multilateral international regime, notably in relation to the jurisdiction rules and conflict of jurisdiction rules for maintenance and for divorce. In these cases the EU should consider the viability of seeking multilateral solutions in The Hague (not likely at this stage) and then consider at least some minimal unilateral action along the lines of Articles 33 and 34 of Brussels Ia (preferably not restricted to a first seised approach) to allow judges in the EU to defer to non-EU courts in cases where the non-EU courts are clearly more appropriate to determine the divorce (including ancillary matters) or to determine a maintenance case. Given that recognition of non-EU divorces is almost certainly caught by EU external competence, the EU should consider at least authorising the Member States that have not already done so, to ratify the 1970 Hague Divorce Convention. If an analysis of that Convention by the Commission and the Member States considers that a new Hague Convention would be an improvement and could be achieved in the Hague (seemingly unlikely at present, due, if nothing else, to differences of view on same-sex marriages), then they should try to put that on the Hague Conference agenda.

344

part viii Relation with Other Instruments

346

25 Impact of the Regulations on the Free Movement of Persons in the EU ALESSANDRA LANG

I. Introduction The EU’s Private International Law regulations pursue the objective of removing ­obstacles to the free movement of persons. This chapter aims to investigate the relationship between free movement of persons and Private International Family Law, in order to understand whether the objective of removing obstacles to free movement of persons is achieved through the EU’s family law regulations. The decisions contained in the EUFam’s database offer a broad and varied panorama of the cases and we will consider these. To understand the relationship between the two regulatory systems, we need to ascertain the degree to which the solutions devised in the area of Private International Family Law are prompted by the requirements of free movement of persons and by the relevance of these requirements in the interpretation of Private International Law rules. In addition, we need to consider the obstacles to free movement of persons which can or could arise from the absence of Private International Law instruments and to establish whether the family law regulations help to overcome those obstacles. First of all, we need to define the concept of free movement of persons. Far from being simply synonymous with mobility, free movement of persons expresses a specific legal concept in the EU’s legal system.

II.  The Notion of Free Movement of Persons in the Treaty The expression ‘free movement of persons’ is used in the founding Treaties in two different contexts, which we can describe here as being free movement of persons in the context of the Schengen system, and free movement of persons as a fundamental tenet of citizenship of the EU. In the context of the Schengen system, free movement of persons is associated with the abolition of controls at internal borders and is understood to mean mobility of

348  Alessandra Lang individuals between Member States, irrespective of nationality.1 In this context, free movement of persons is ensured when there are no controls at internal borders to check the nationality of individuals and their right to move from one state to another.2 This right of free movement is enjoyed by all lawful residents within the EU, including EU citizens and third-country nationals who have a right to be present in a EU State.3 In contrast, as far as rights associated with citizenship of the EU are concerned, free movement of persons is a much broader concept in terms of content but more restricted in terms of beneficiaries compared with the Schengen system. This concept includes not only mobility but also the right of residence and the right to equal treatment, which are guaranteed only for EU citizens (and their family members, irrespective of nationality) and only under the conditions set out in the Treaties and in secondary legislation. In concise terms, EU citizens have the right of residence in a Member State other than their own if they are workers or self-employed persons (and in this case, we are in the context of the internal market),4 they are students and have sufficient resources to support themselves financially, or if they are neither workers nor students but have sufficient resources to support themselves financially without claiming benefits from the host state.5 Third-country nationals enjoy free movement of persons according to 1 It is well known that the seeds from which the present Art 77 TFEU sprouted were planted outside the European Economic Community framework by the five Member States that signed the 1985 Schengen Agreement and the 1990 Implementing Convention, hence the name of Schengen system to designate the rules on the abolition of checks at the internal borders. 2 According to Art 2(11) of Regulation 2016/399 of the European Parliament and of the Council, on an EU Code on the rules governing the movement of persons across borders and repealing Regulation 562/2006 [2016] OJ L77/1 Schengen Borders Code, border checks are ‘checks carried out at border crossing points, to ensure that persons, including their means of transport and the objects in their possession, may be authorised to enter the territory of the Member States or authorised to leave it’. The same regulation abolishes border checks at internal borders and strengthens them at external borders. The very abolition of the internal borders rests on the controls carried out at the external borders by the Member States, with the assistance of the EU, as the case may be. 3 Schengen Borders Code, Art 22: ‘Internal borders may be crossed at any point without a border check on persons, irrespective of their nationality, being carried out’. The preamble of the Schengen Agreement is very telling in that it stated that the freedom to cross internal borders was recognised by the EEC Treaty for all nationals of the Member States. The Court of Justice itself recognised that ‘as long as Community provisions on controls at the external borders of the Community, which also imply common or harmonised rules on, in particular, conditions of access, visas and asylum, have not been adopted, the exercise of [the right to move and reside freely in the territory of the Member States conferred by the Treaty on citizens of the EU] presupposes that the person concerned is able to establish that he or she has the nationality of a Member State.’ (Case C-378/97 Wijsenbeek [1999] ECR I-6207, ECLI:EU:C:1999:439, para 42). Third country nationals who are entitled to benefit from the abolition of the internal borders are those who are legally in the EU, ie, the family members of citizens of the EU, persons legally residing in a Member State, persons legally present in a Member States, with an entry visa for a short stay or exempted from visa requirements. 4 It is well known that free movement of persons was originally limited to workers and self-employed persons and was one of the four fundamental freedoms of the common market. It was later extended to other categories of persons (students, pensioners, persons with an income) thanks to the Court of Justice and to the Council and was subsequently recognised as a tenet of EU citizenship in the 1992 Maastricht Treaty. On the personal scope of free movement, see generally J Tomkin, ‘Citizenship in Motion: the Development of the Freedom of Movement for Citizens in the Case-Law of the Court of Justice of the European Union’ in E Guild and P Minderhoud (eds), The first decade of EU migration and asylum law (Leiden, Nijhoff, 2012) 25 ff. 5 European Parliament and Council Directive 2004/38/EC of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/ EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC [2004] OJ L 158/77: Arts 6 (Right of

Impact of the Regulations on the Free Movement of Persons in the EU  349 the meaning described above if they are family members of an EU citizen who has the right of residence. The term ‘family members’ includes the spouse, the partner in a registered partnership, if the host state treats registered partnerships as equivalent to marriage, descendants who are under the age of 21 or are dependants, and dependent relatives in the ascending line.6 After five years of residence, the EU citizen and their family members no longer need to meet particular conditions, and acquire a right of permanent residence, which they lose only in cases of prolonged absence or on serious grounds of public policy or public security.7 This means that the loss of family member status or the loss of a source of income no longer affects the right of residence. The residence conditions for third-country nationals who are not family members of the EU citizen can be established by EU law or by national law, but are not included within free movement of persons. The EU’s competence to define the residence conditions for third-country nationals is known as immigration policy8 or common asylum policy,9 depending on the reasons for such residence. Immigration and asylum policies are part of the area of freedom, security, and justice, which includes the Schengen system but not citizenship of the EU or the internal market.10 Free movement of persons, therefore, brings with it a series of rights for beneficiaries. Free movement within the Schengen system entails the right not to be subjected

residence for up to three months) and 7 (Right of residence for more than three months). On the directive, see generally A Iliopoulou, ‘Le nouveau droit de séjour des citoyens de l’Union et des membres de leur famille: la directive 2004/38/CE’ (2004) RDUE 523; P De Bruycker, ‘La libre circulation des citoyens européens entre codification et réforme. Présentation générale de la directive 2004/38’ in J-Y Carlier and E Guild (dir), L’avenir de la libre circulation des personnes dans l’U.E. (Bruxelles, Bruylant, 2006) 21; E Guild, S Peers and J Tomkin, The EU Citizenship Directive. A Commentary (Oxford, OUP, 2014); C Morviducci, I diritti dei cittadini europei, 2nd edn (Torino, Giappichelli, 2014); C. Barnard, The Substantive Law of the EU. The Four Freedoms, 5th edn (Oxford, OUP, 2016) 331. 6 Dir 2004/38, Arts 2 (Definitions) and 3 (Beneficiaries). 7 Dir 2004/38, Chapter IV, Arts 16–21. 8 Art 79 TFEU is the legal basis that allows the EU to develop a common immigration policy. Giving the EU the power to develop a policy in a certain field is not necessarily tantamount to having a policy in that field. And even though a number of pieces of secondary legislation have actually been adopted, this does not mean that a complete regime has indeed been set out. Some Treaty provisions even hinder the adoption of a complete common policy in these fields, because they reserve some matters, which are part and parcel of a common policy, to the Member States. As a matter of fact, the EU does not have the right to determine volumes of admission of third-country nationals coming from third countries in order to seek work, nor can it harmonise national legislations on the integration of third country nationals residing legally (Art 79, paras 4 and 5). On the development of EU law on these subjects, see generally N El-Enany, ‘EU Asylum and Immigration Law under the Area of Freedom, Security and Justice’ in A Arnull and D Chalmers (eds), Oxford Handbook of EU law (Oxford, OUP, 2015) 880, and for more details, K Hailbronner and D Thym (eds), EU Immigration and Asylum Law. A Commentary, 2nd edn (München, CH Beck, 2016). 9 The common policy on asylum and subsidiary protection is grounded on Art 78 TFEU and is developed in accordance to the 1951 Geneva Convention relating to the status of refugees. The conditions under which asylum-seekers and refugees can reside in Member States are laid down by European Parliament and Council Directive 2013/33/EU of 26 June 2013 laying down standards for the reception of applicants for international protection (recast) [2013] OJ L 180/96 and European Parliament and Council Directive 2011/95/EU of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted [2011] OJ L 337/9 respectively. See generally N El-Enany (n 8) 880, and for more details, K Hailbronner and D Thym (n 8). 10 The legal bases of Dir 2004/38 are Arts 12 TEC (now Art 18 TFEU: non-discrimination on ground of nationality), 18, para 2 (now Article 21, para 2: citizenship of the EU), 40 (now Art 45: workers), 44 (now Art 50: freedom of establishment) and 52 (now Art 59: freedom to provide services).

350  Alessandra Lang to controls when crossing an internal border.11 If controls at internal borders were reintroduced temporarily or even permanently, free movement of persons, as a right associated with citizenship of the EU (right of residence and equal treatment), would be unaffected.12 This is because EU citizens and their family members enjoy rights of entry and residence which do not involve the checking of documents.13 From a geographical point of view, there is a difference between the two meanings of free movement of persons illustrated above. The abolition of internal borders corresponds to the Schengen area, which is both more restricted and more extensive compared with the area in which free movement of persons in its broader sense applies. It is more restricted because the Schengen area does not include the United Kingdom and Ireland, under Protocol 21, or other states in which controls have not been abolished (Cyprus, Bulgaria, Romania, and Croatia).14 These six states are nonetheless required to recognise the free movement of persons to the citizens of the EU, because they are Member States of the EU. The Schengen area also includes countries that are not Member States of the EU: Iceland, Norway15 and Liechtenstein,16 on the one hand, and Switzerland17 on the other. All four are associated with Schengen, and the first three are connected to the EU by the European Economic Area Agreement, which provides for free movement of persons according to the internal market version.18 In contrast, Switzerland is not bound by free movement of persons but has entered into an agreement with the EU which provides for a system that is not dissimilar to the EU’s own system.19 11 Schengen Borders Code, Art 22. 12 ibid Arts 25–35, which laid down the relevant provisions for the temporary reintroduction of border control at internal borders. See generally N Piçarra, ‘Le régime juridique du franchissement des frontières intérieures de l’Union européenne face aux défis de la migration’ in J Iliopoulos-Strangas, M Potacs, ES Tanasescu, J Ziller (eds), Migration – Migration – Migrations (Baden-Baden, Nomos Verlagsgesellschaft, 2017) 119. 13 The citizens of the EU draw the right to free movement from Art 21 TFEU. The conditions under which the said right can be exercised are laid down by Dir 2004/38. 14 Accession to the EU does not bring about the automatic abolition of checks at the internal borders: the Council has to decide whether the state is ready for it (2003 Accession Act, Art 3, para 1–2; 2005 Accession Act, Art 4; 2011 Accession Act, Art 4). Cyprus asked for the extension of the temporary regime, due to the well-known division of the island, while the Council has not yet decided the full application of the provisions of the Schengen acquis, and therefore the abolition of checks at the internal borders, in Bulgaria, Romania and Croatia. 15 Agreement concluded by the Council of the EU and the Republic of Iceland and the Kingdom of Norway concerning the latter’s association with the implementation, application and development of the Schengen acquis [1999] OJ L176/36. See generally A Tizzano, ‘A proposito dell’inserzione dell’acquis di Schengen nei trattati comunitari: l’accordo “del Consiglio” con Islanda e Norvegia’ (1999) DUE 521; N Wichmann, ‘The Participation of the Schengen Associates: Inside or Outside?’ (2006) EFAR 87. 16 Protocol between the EU, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the EU, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis [2011] OJ L160/3. 17 Agreement between the EU, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis [2008] OJ L53/50. 18 Agreement on the European Economic Area [1994] OJ L1/3: Arts 28 and 31, corresponding to Arts 45 and 49 TFEU. By Decision 158/2007 [2008] OJ L124/20, the EEA Joint Committee decided that Dir 2004/38 is applicable in the EEA states, but the words ‘Union citizen(s)’ have to be replaced by the words ‘national(s) of EC Member States and EFTA States’. On the EFTA Court case law, see C Burke and O Ísberg Hannesson, ‘Citizenship by the back door? Gunnarsson’ (2015) CML Rev 1111. 19 Agreement between the European Community and its Member States, on the one hand, and the Swiss Confederation, on the other, on the free movement of persons [2002] OJ L114/6. Contrary to Dir 2004/38, the

Impact of the Regulations on the Free Movement of Persons in the EU  351

III.  Rights Associated with Free Movement of Persons From a legal point of view, free movement of persons grants beneficiaries a number of rights. The most significant rights are those associated with EU citizenship. The rights associated with EU citizenship may concern residence conditions stricto sensu or equal treatment during residence. As regards residence conditions stricto sensu, these are set out in Directive 2004/38. As far as equal treatment is concerned, the fundamental principle is that discrimination on grounds of nationality is not permitted within the scope of application of the Treaty.20 This prohibits direct discrimination, in the sense that the EU citizen has the right to receive the same treatment as the citizen of the host state. This also prohibits indirect discrimination, which occurs when the effect of applying the rule, which by itself is neutral on the basis of nationality, is to cause harm to the EU citizen, creating an obstacle to free movement of persons. It is vitally important that the national legislation whose discriminatory content or effect is being discussed falls within the scope of the Treaty. This notion is not perfectly defined and continues to raise interpretative questions. However, it is clear that the principle of non-discrimination on grounds of nationality must lie at the heart of the creation and application of any national legislation, including in areas where the EU does not have competence but where competence is reserved for the states, if denying equal treatment might create an obstacle to free movement of persons.21 Obstacles to free movement of persons need to be removed by states, unless they are justified by imperative requirements in the general interest and necessary to attain the object they pursued. Obstacles can originate from state laws, from administrative practices, and from individual decisions, including court judgments.22 The EU’s legislative intervention helps states but is not exhaustive.23 The principle of no discrimination on grounds of nationality is a tool that is helpful in removing obstacles but it is not perfect, since it relies on the individuals’ resolution to go to court to vindicate their right not to be discriminated against. Free movement as described up to this point concerns relations between an EU ­citizen and a host state different from the state of origin.24 However, free movement of Agreement provides for neither the right of permanent residence, nor the enhanced protection against expulsion; it prescribes the issuance of a residence permit and grants a narrower right to non-discrimination on grounds of nationality than EU law. See generally F Ippolito, ‘Non discriminazione sulla base della nazionalità nell’accordo sulla libera circolazione delle persone Unione europea – Svizzera’ in M Condinanzi (a cura di), Unione europea e Svizzera tra cooperazione e integrazione (Milano, Giuffrè, 2012) 163. 20 See M Bell, ‘The principle of equal treatment: widening and deepening’ in P Craig, G de Búrca (eds), The Evolution of EU Law (Oxford, OUP, 2011) 611. 21 Income tax rules (Case C-283/15 X v Staatssecretaris van Financiën [2017] ECLI:EU:C:2017:102) and language rules applicable to civil proceedings (Case C-322/13 Ulrike Elfriede Grauel Rüffer v Katerina Pokorná [2014] ECLI:EU:C:2014:189) are but a few examples of matters which rest within the remit of national competence and are nonetheless subject to the principle of non-discrimination on grounds of nationality. 22 For a judicial decision that amounts to an obstacle to free movement of persons, Case C-430/10 Hristo Gaydarov v Director na Glavna direktsia ‘Ohranitelna politsia’ pri Ministerstvo na vatreshnite raboti [2011] ECR I-11637, ECLI:EU:C:2011:749. 23 The case decided by OLG Karlsruhe, 17 August 2009, 16 UF 99/09, DES20090817, about pension rights adjustments, provides us with a good example of the limits of individual action and on the necessity of modifying the law to eliminate an obstacle to free movement. 24 Dir 2004/38 only applies to EU citizens who move to another Member States: Case C-434/09 Shirley McCarthy v Secretary of State for the Home Department [2011] ECR I-3375, ECLI:EU:C:2011:277, para 43.

352  Alessandra Lang persons in certain cases also confers rights on EU citizens with respect to their own state. These are rights that are nonetheless associated with past or future mobility. Firstly, the state of origin must treat its own citizens (who are returning after exercising their right of free movement by having settled in another Member State) exactly the same as it treats EU citizens who settle in its territory.25 Secondly, the state must not put in place obstacles that discourage its citizens from exercising their free movement rights in other Member States.26 Thirdly, the state must not harm its citizens by failing to take account of the fact that their family members have exercised their free movement rights.27 Frontier workers who live in one Member State (often, but not always, in the state of nationality) and work in another Member State find themselves in an unusual position. More often than others, they will need to contend with two legal systems.

IV.  Free Movement of Persons and Situations Falling under Private International Family Law However broad it may be, free movement of persons does not include all situations that present a foreign element in relation to private international family law. The foreign element is certainly associated with mobility, but not necessarily with free movement of persons. This is clearly borne out in practice: a substantial number of decisions contained in the EUFam’s database are unconnected to free movement of persons. These essentially include the following: i) Cases in which the parties are third-country nationals, and have the same nationality, or different nationality: free movement does not apply because the third-country nationals, who even where they acquire rights from EU law, do not enjoy free movement of persons as a right associated with citizenship of the EU. ii) Cases in which the parties are a citizen of the forum state and a citizen from a third country who lives and has always lived in the forum state or in a third country: here too the element of mobility between Member States, which is a necessary requirement for applying free movement of persons, is absent. The residence conditions for family members of citizens of the forum state do not fall under free movement of persons and are not currently governed by EU law.28 iii) Cases in which the parties are citizens of the forum state and are connected to a third country (where they have lived, continue to live, or where at least one of them lives): free movement does not apply because the right of a person to live in their state does not depend on EU law. So mobility concerns a third country not bound by free movement. 25 This principle is particularly important as to family reunification. 26 Case C-56/09 Emiliano Zanotti v Agenzia delle Entrate – Ufficio Roma 2 [2010] ECR I-4517, ECLI:EU:C:2010:288. 27 Case C-403/03 Egon Schempp v Finanzamt München V [2005] ECR I-6421, ECLI:EU:C:2005:446. 28 The decisions contained in the database show a large number of disputes involving third-country nationals. This is not surprising when one considers that there are many more foreign nationals than EU citizens who are living in a country other than their own. According to Eurostat data, foreign-born people living in the EU 28 accounted for 10.2% of the total population on 1 January 2014. Of these, almost twice as many were born outside the EU as born in one Member State and living in another.

Impact of the Regulations on the Free Movement of Persons in the EU  353 Problems relating to free movement can occur when the parties are a citizen of the forum state and a citizen of another Member State, each resident in their own state of origin. Although the residence conditions of a person in their own state of origin are governed by national law and not by free movement of persons, it is true that potential mobility could be obstructed, for example by measures or orders relating to parental responsibility towards children.29 Cases that present a foreign element in relation to Private International Law and abstractly fall within the scope of free movement of persons are as follows: i) Cases in which at least one of the parties who are EU citizens remains in a state where he or she does not have citizenship. Firstly, the EU citizen, if he or she has not acquired the right of permanent residence, must meet the conditions on which residence is conditional and family circumstances could affect their ability to meet those conditions. And secondly, the EU citizen could suffer discrimination compared with citizens of the host state. ii) Cases in which a party, a third-country national, resided as a family member of an EU citizen in a state where the EU citizen does not have citizenship: loss of family member status, arising from a divorce ruling, impacts rights of residence. As already stated, the third-country national only falls under free movement of persons if he or she is a family member of an EU citizen. If he or she does not enjoy that status or loses that status, he or she may therefore also lose the right of residence in the host state. However, this is not the case when the third-country national, a family member of the EU citizen, moves on their own to another Member State. Here, the person does not have a right of residence falling within the scope of free movement of persons because the family member’s right arises only in the state in which their EU citizen relative is situated.30 The cases brought to the Court of Justice confirm that not all cases that present a foreign element also fall within the scope of application of free movement of persons.

V.  Free Movement of Persons and Judicial Cooperation in Civil Matters Private International Law forms part of judicial cooperation in civil matters, which, in turn, is included within the area of freedom, security, and justice.31 The reasons for the connection between free movement of persons and EU competence in this area can be understood by looking at how EU integration has evolved. The Treaty of Rome established that the activities of the European Economic Community would achieve ‘the abolition, as between Member States, of obstacles to the free movement of persons, services and capital’ (Article 3(a)). Detailed provisions



29 These

are recurring cases for both the Court of Justice and national courts. C-40/11 Yoshikazu Iida v Stadt Ulm [2012] ECLI: EU:C:2012:691. 81 TFEU is the legal basis of Private International Law regulations.

30 Case 31 Art

354  Alessandra Lang were contained in Title III (Free movement of persons, services and capital). The Single European Act adds the establishment of the internal market as an ‘area without internal frontiers in which the free movement of goods, persons, services and capital is ensured’ (Article 8A) to the objectives of the Community.32 The abolition of controls at internal borders is accompanied by the strengthening of controls at external borders and by other forms of collaboration to ensure that criminals or persons not otherwise entitled do not take advantage of free movement. It is well known that states initially preferred to develop these forms of cooperation outside of the European Economic Community. Since the Maastricht Treaty, however, states have agreed to cooperate in sensitive areas within the framework of the so-called third pillar, which include judicial cooperation in civil matters, areas intended to ‘[achieve] the objectives of the Union, in particular the free movement of persons’ (Article K.1).33 The Amsterdam Treaty states that the objectives of the EU include the objective ‘to maintain and develop the Union as an area of freedom, security and justice, in which the free movement of persons is assured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime’ (Article B TEU) and dedicates a title of the TEC to ‘Visas, asylum, immigration and other policies related to free movement of persons’, which contains Article 65, the legal basis for the EU’s Private International Law acts.34 Finally, the Lisbon Treaty provides that: [t]he Union shall offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime. (Article 3(2) TEU).35

32 See especially J De Ruyt, L’acte unique européen: commentaire, 2nd edn (Bruxelles, Editions de l’Université de Bruxelles, 1989) 149 ff. Civil matters were not mentioned among the areas where cooperation among Member States were useful. The obstacles to free movement of persons were to be addressed by harmonising national legislations, under Art 100 TEEC, since the new simplified procedure connected to the establishment of the internal market was not applicable according to Art 100A para 2 TEEC. The impossibility of gaining the required unanimity within the Council brought some of the Member States to engage in cooperation outside the EEC framework (see n 2). 33 The link between justice and home affairs on the one hand and facilitating free movement of persons on the other was clearly stated in the preamble of the Treaty. See generally C Curti Gialdino, Il Trattato di Maastricht sull’Unione europea: genesi, struttura, contenuto, processo di ratifica (Roma, Istituto poligrafico e Zecca dello Stato, 1993) 295 ff; J Cloos, G Reinesch, D Vignes and J Weyland (sous la direction de), Le traité de Maastricht: genèse, analyse, commentaires, 2nd edn (Bruxelles, Bruylant, 1994) 491 ff. 34 See especially P Twomey, ‘Constructing a Secure Space: the Area of Freedom, Security and Justice’, in D O’Keeffe and P Twomey (eds), Legal Issues of the Amsterdam Treaty (Oxford, Hart Publishing, 1999) 351 ff. Legal scholars regarded the ‘communitarisation’ with different degrees of appraisal. For instance, while R Adam, ‘La cooperazione in materia di giustizia e affari interni tra comunitarizzazione e metodo intergovernativo’ (1998) DUE 504, underlines that the ‘communitarisation’ of the judicial cooperation in civil matters brought with it a shrinkage of its potential scope of application, S Bariatti, ‘La cooperazione giudiziaria in materia civile dal terzo pilastro dell’Unione europea al Titolo IV del Trattato CE’ (2001) DUE 288, points out that the subsequent practice of the institutions has widened the scope of Art 65, since the matters it lists are only illustrative. 35 See generally I Barrière Brousse, ‘Le Traité de Lisbonne et le droit international privé’ (2010) JDI; E Storskrubb, ‘Civil Justice – A newcomer and an unstoppable wave?’ in P Craig and G De Búrca (eds), The evolution of EU law (Oxford, OUP, 2011) 299; S Peers, ‘Justice and Home Affairs Law since the Treaty of Lisbon: A Fairy-Tale Ending?’, D Acosta Arcarazo and C Murphy (eds), EU Security and Justice Law. After Lisbon and Stockholm (Oxford, Portland, 2014) 17.

Impact of the Regulations on the Free Movement of Persons in the EU  355 The title of the Treaty that contains detailed provisions on the free movement of persons retains the reference in its name, whereas the title that contains the legal basis for the EU’s Private International Law acts loses this (and becomes ‘Area of freedom, security and justice’). The extension of the EU’s competences was therefore prompted by the need to deal with the collateral effects of the free movement of persons as a component of the internal market and of the abolition of controls at internal borders. The pursuit of the objective of free movement of persons becomes the reason behind every exercise of the EU’s competence in the areas indicated. The reference to the need to achieve the objective and the suitability of the act for achieving that objective is sufficient to justify the act, without having to demonstrate that a specific act is necessary, on account of its content, to ensure the free movement of persons. A harmonised set of Private International Law rules, applicable in all the Member States, is in itself a valuable achievement, in an EU where mobility has become more and more common. A different question is whether these harmonised rules lead to a law that is in line with the mobile persons’ expectation.

VI.  Free Movement of Persons and Private International Family Law Regulations The recitals to all Private International Family Law regulations begin with the following statement: The Union has set itself the objective of maintaining and developing an area of freedom, security and justice, in which the free movement of persons is assured. For the gradual establishment of such an area, the Union must adopt measures relating to judicial cooperation in civil matters having cross-border implications, particularly when necessary for the proper functioning of the internal market.36

With the exception of the Brussels IIa Regulation, the other regulations in force also mention free movement of persons in the recital concerning the principle of subsidiarity, along the following lines: Since the objectives of this Regulation, namely [specific objectives of the act] and thus to facilitate the free movement of persons within the European Union, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and effects of this Regulation, be better achieved at Community [Union] level, the Community [Union] may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of

36 Rome III Regulation, Recital 1. The same statement is also contained in the other Private International Family Law regulations, with minimal variants. A similar recital can also be found in almost all Private International Law regulations (Service Regulation; Brussels I Regulation; Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters [2001] OJ L 174/1; European Enforcement Order Regulation; European Payment Order Regulation; European Small Claims Procedure Regulation; Regulation (EU) No 606/2013 of the European Parliament and of the Council of 12 June 2013 on mutual recognition of protection measures in civil matters [2013] OJ L 181/4), but does not appear in the Brussels Ia Regulation; Rome II Regulation; Rome I Regulation and Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings [2015] OJ L 141/19.

356  Alessandra Lang the Treaty. In accordance with the principle of proportionality as set out in that Article this Regulation does not go beyond what is necessary to achieve those objectives.37

Less stereotyped references are contained in some of the regulations, in which free movement of persons is mentioned in relation to the choices made in terms of connecting factors. Strangely, the Brussels IIa Regulation is silent on the matter but the Brussels II Convention, which never entered into force but which was the predecessor to Brussels IIa, proposed solutions on forums of jurisdiction which ‘deal with mobility’ in order to ‘meet individuals’ needs’.38 The Rome III Regulation states that: [i]ncreasing the mobility of citizens calls for more flexibility and greater legal certainty. In order to achieve that objective, this Regulation should enhance the parties’ autonomy in the areas of divorce and legal separation by giving them a limited possibility to choose the law applicable to their divorce or legal separation. (Recital 15)

Here there is a cause-and-effect relationship between granting the spouses autonomy in the choice of the applicable law and increasing the mobility of persons. The Succession Regulation wishes to remove ‘the obstacles to the free movement of persons who currently face difficulties in asserting their rights in the context of a succession having cross-border implications’, both for persons who wish to organise their succession in advance and for heirs, legatees and other persons close to the deceased and creditors of the succession. Recital 23 identifies a link between the increasing mobility of persons and the choice of habitual residence of the deceased at the time of death as a general connecting factor for identifying both jurisdiction and the applicable law, without neglecting to ensure the proper administration of justice and to ensure a genuine connecting factor. Both the Matrimonial Property Regimes Regulation and the Regulation on the Property Consequences of Registered Partnerships refer to increasing mobility of citizens as a means of justifying choices in relation to jurisdiction. If there is a connection between property matters and succession between spouses and/or dissolution of a marriage or registered partnership, mobility justifies the choice of concentrating jurisdiction on the authorities already competent on the basis of the Succession Regulation and, respectively, on the Brussels IIa Regulation or on the judge having jurisdiction to hear the termination of the registered partnership.39 If no such connection exists, mobility justifies the choice of identifying a scale of connecting factors for the purposes of determining jurisdiction. According to Recital 35 of both regulations, ‘these connecting factors are set in view of the increasing mobility of citizens and in order to ensure that a genuine connecting factor exists between the spouses and the Member State in which jurisdiction is exercised’. Finally, Recital 16 of the Regulation on the Property Consequences of Registered Partnerships identifies, as obstacles to the free movement of persons (which the 37 The Brussels IIa Regulation uses an even more generic wording to justify the principle of subsidiarity. 38 A Borrás, ‘Explanatory Report on the Convention, drawn up on the basis of Article K.3 of the Treaty on European Union, on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters (approved by the Council on 28 May 1998)’ [1998] OJ C221/27 para 27. 39 Recital 32 to both regulations.

Impact of the Regulations on the Free Movement of Persons in the EU  357 regulation intends to remove) the difficulties that couples who have entered into a registered partnership find ‘in the administration and division of their property’. This panorama allows us to make a number of observations. Firstly, free movement of persons is the generic objective of the private international family law regulations and the reference to free movement in the recitals performs the function of identifying the foundation for the EU’s competence. Secondly, mobility is mentioned as a means of justifying choices in relation to connecting factors. These choices range from allowing the parties limited autonomy in determining: the applicable law (Rome III Regulation), to enabling the testator to organise their succession in advance, to identifying a main connecting factor (Succession Regulation), and a scale of connecting factors (Matrimonial Property Regimes Regulation and Regulation on the Property Consequences of Registered Partnerships) or alternative connecting factors (for divorce: Brussels IIa Regulation). Different solutions are therefore justified by the same goal. Thirdly, the specific need to abolish obstacles to free movement is expressly mentioned, in the case of the Regulation on the Property Consequences of Registered Partnerships, to justify the choice of an instrument that concerns ‘provisions on jurisdiction, applicable law, recognition or, as the case may be, acceptance, enforceability and enforcement of decisions, authentic instruments and court settlements’40 and, in the Succession Regulation, to safeguard the rights of all parties involved. Free movement of persons seems to be mentioned here according to its simple nontechnical meaning of mobility. Free movement of persons does not seem to impose the choice of connecting factors that is actually made, to the exclusion of any other.41 If we take the Succession Regulation, for example, we can see that a change of habitual residence brings about a change in the applicable law and in jurisdiction, and this is a change that can be neutralised by choosing the citizenship law. It seems that the wish is to take account of the case where the person changes habitual residence but keeps citizenship (which does not change) as the connecting factor. It does not take into consideration the situation (which is certainly not infrequent in the area of free movement) where a migrant worker who has spent their entire active life in one state moves on retirement to another state, for example to their state of origin or to a third Member State. This migrant worker may wish to retain as applicable the law of the state where he or she has been resident their whole life and where their assets and family members have perhaps remained. In other words, the reference to free movement could equally have justified different choices regarding connecting factors. The provisions relating to parental responsibility contained in the Brussels IIa Regulation seem, in any case, to be aimed at preventing a parent from taking advantage of free movement (in other words the right to move around) in order to move the child’s habitual residence and cause a change in the court having jurisdiction. From that perspective, the Brussels IIa Regulation is not aimed at abolishing obstacles to free movement of persons but rather at ensuring that the interests of the child prevail in

40 The Maintenance Regulation is silent on the point. 41 Alternative connecting factors can be envisaged that can serve free movement even better. It is difficult to say in abstract terms that mobility prompts to prefer one factor to another. See especially M Bogdan, Concise introduction to EU Private International Law, 2nd edn (Groningen, Europa Law Publishing, 2013) 28.

358  Alessandra Lang a context of easier mobility.42 The opportunities offered by free movement of persons and, in particular, the absence of controls at internal borders, could be exploited by a parent with custody to take advantage of the separate nature of legal systems in order to undermine the other parent’s rights or harm the child’s interests. The arrangements established in the regulation bring together the legal systems, as if the courts of the states involved were part of a single system aimed at protecting the best interests of the child. From a different perspective, when the holder of rights of custody exercises free movement rights and moves to a different state from the state of origin and lawfully transfers the child’s residence, he or she could undermine the other parent’s rights of access. But shared custody can restrict the enjoyment of free movement of persons because neither parent can change their residence or the child’s residence without the other parent’s consent.

VII.  Free Movement of Persons and Private International Family Law in the Case Law of the Court of Justice The Court of Justice has rendered about 30 rulings on private international family law regulations. Interestingly, it has not focused on free movement of persons in its interpretation of private international family law regulations. The Court mentioned free movement in a few judgments. The Sundelind Lopez43 case involves the interpretation of Articles 6 and 7 of the Brussels IIa Regulation, in a case where the wife submitted an application for divorce to a judge in her state of nationality, but resided in another Member State where her matrimonial life was situated, before her third country national husband came back to his state of origin. The Court referred to the aim of the Brussels IIa Regulation to ensure free movement of persons as encompassing third country nationals having a sufficiently close link with the territory of a Member State. As a consequence, the residual competence of Article 7 cannot be applied when the judge of another Member State is competent to hear the case. While the Court’s reasoning was not entirely clear, it seemed nonetheless to take free movement as equivalent to mobility. The Hadadi44 case concerned the effect of same dual nationality on the ground of jurisdiction referred to in Article 3(1)(b) of the Brussels IIa Regulation and, in particular, examined whether only one of the nationalities in common should or can be taken into account in determining the jurisdiction of the court seised or whether both nationalities can be used to that end, at the applicant’s choice. The Court stated that ‘there is nothing in the wording of Article 3(1)(b) to suggest that only the ‘effective’ nationality can be taken into account in applying that provision’ (para 51). To support that

42 The best interests of the child takes precedence over the right to free movement: see Case C-428/15 Child and Family Agency v JD [2016] ECLI:EU:C:2016:819 below. 43 Case C-68/07 Kerstin Sundelind Lopez v Miguel Enrique Lopez Lizazo [2007] ECR I-10403, ECLI:EU:C:2007:740. 44 Case C-168/08 Laszlo Hadadi (Hadady) v Csilla Marta Mesko, épouse Hadadi (Hadady) [2009] ECR I-6871, ECLI:EU:C:2009:474.

Impact of the Regulations on the Free Movement of Persons in the EU  359 interpretation, the Court stated that the contrary interpretation would be in conflict with the objective of the provision and the context of which it forms part. In para 53, the Court stated that ‘such an interpretation would restrict individuals’ choice of the court having jurisdiction, particularly in cases where the right to freedom of movement for persons had been exercised’. The statement is only apparently clear and proves to be unsatisfactory on closer examination. The Court compared the situations of, on the one hand, a couple with the same, single, nationality and, on the other hand, a couple with the same dual nationality. If the first couple had habitual residence in a State in which they were not nationals, the grounds of jurisdiction of the regulation based on habitual residence and those based on same nationality were, for that couple, placed on an equal footing, even if they did not retain any link with the state of nationality. If the second couple could choose only the court of effective nationality as being the court of same nationality, and if effective nationality corresponded to that of habitual residence, they would not then have the same freedom of choice as the couple with the same, single, nationality. But this reasoning only makes sense if the couple, as the applicants in the main proceedings, have habitual residence in a state of which they are nationals. If, in contrast, habitual residence is in a state of which the spouses are not nationals, habitual residence plays no part in determining the most effective nationality. In truth, the reference to free movement is not particularly useful. Two apparently marginal statements were more significant when it comes to looking into the reasons behind the interpretation. Firstly, the judgment considered the fact that, from the perspective of each of the states involved, the person is its own national.45 In other words, equality between Member States meant that one or another nationality was not considered the most effective, depending on the observation point. Secondly, the need to determine which is the most effective nationality ‘would make verification of jurisdiction more onerous and thus be at odds with the objective of facilitating the application of Regulation No 2201/2003 by the use of a simple and unambiguous connecting factor’ (para 55). Equality between states and legal certainty requirements were more robust reasons for justifying the Court’s interpretation. The Child and Family Agency46 case concerned an application, brought by an Irish court, for transfer of the case to a UK court pursuant to Article 15 Brussels IIa Regulation. The child in question was the second child of a UK national, who moved to Ireland after the UK authorities had decided that the baby, at the time unborn, was to be placed in the care of a foster family. Of interest here is the final question that the Court answers concerning whether, in the context of Article 15, account should be taken of: the effect that a possible transfer of that case to a court of another Member State may have on the right of freedom of movement of the persons concerned or the reasons why the mother of the child concerned exercised that right, prior to that court being seised (para 62).

However, it should not be overlooked that the Court had just said that the court seised, having jurisdiction as the court of the habitual residence of the child, must be capable



45 Para

46 Case

41 onwards of the judgment. C-428/15 Child and Family Agency v JD (n 42).

360  Alessandra Lang of rebutting the ‘strong presumption in favour of maintaining its own jurisdiction’ (para 49). It is no surprise, therefore, that in response to the specific question about free movement, the Court stated that the best interests of the child must be taken into account when deciding on a transfer pursuant to Article 15 of the regulation. Therefore, ‘if a possible transfer of the case was liable to be detrimental to the right of freedom of movement of the child concerned, that would be one of the factors to be taken into consideration when applying Article 15(1) of Regulation No 2201/2003’ (para 64), whereas the effect on the freedom of movement of others, such as the mother, was not to be taken into account, unless there were adverse repercussions on the situation of the child. Equally irrelevant were the reasons why the mother chose to exercise her right of freedom of movement (para 66). In contrast, in McB, the Court stated that the mother with custody who came back to her state of origin with the child was exercising her right to free movement and was not abducting the child, because the move was not detrimental to the father, who did not enjoy parental responsibility, or to the child.47 Here, free movement was a mere synonym with mobility, since it is not EU law that grants the right for nationals to reside in their state of origin. The Child and Family Agency ruling can be adopted in support of the argument that the best interests of the child prevail over free movement of persons requirements. It can also be used to dispute the importance of protection of free movement as an interpretative factor of the Brussels IIa Regulation, at least for the part relating to the rights of children.

VIII.  Free Movement of Persons and Choice of Connecting Factors In very general terms, there is no denying that the choice of ‘habitual residence’ as opposed to nationality as a factor in determining the court having jurisdiction and the applicable law seems to be in line with free movement. This is because ‘habitual residence’ is a factor that can incorporate the exercise of free movement and which changes with the exercise of free movement, whereas nationality is a more permanent factor, which is not affected by the exercise of free movement. If the connecting factor is ‘habitual residence’, the exercising of free movement can bring about a change in ‘habitual residence’ and, therefore, a change in the court having jurisdiction and/or in the applicable law. If the connecting factor is nationality, the exercising of free movement does not bring about a change in the court having jurisdiction and/or in the applicable law. Although central to the system of private international family law, the concept of ‘habitual residence’ is not defined. It is clear that this is an autonomous concept of EU law, which must be applied having regard to the particular characteristics of the case in

47 Case C-400/10 PPU J McB v LE [2010] ECR I-8965, ECLI:EU:C:2010:582. A similar reasoning can be read in a Greek ruling on first instance (Monomeles Protodikeio Kavalas, 11 January 2009 No 24/2009, ELF20090111), which is almost the only decision in the database mentioning free movement of persons.

Impact of the Regulations on the Free Movement of Persons in the EU  361 question and taking into account a number of factors. For free movement of persons, the key notion is that of residence, which has both a factual and legal connotation. The factual connotation concerns the presence of a person in a given state and the legal connation is because it entails the fulfilment of particular requirements. Right of residence is proven by registration with the competent authorities, if this is provided for under national law.48 However, residence for the purposes of free movement of persons does not appear to have any particular relevance in determining ‘habitual residence’. Residence has to do with the legality of the foreign national’s presence in the state, a requirement that appears to be unnecessary when it comes to determining ‘habitual residence’. Courts very often dwell on the grounds for residence in cases pertaining to free movement, since the legality of residence is essential, whereas they rarely address the issue when applying Private International Law rules.49 Since the registered place of residence alone is not sufficient to determine ‘habitual residence’, neither will registration of residence, which is equivalent to the registered place of residence. Habitual residence can be moved relatively easily, at least in theory. From legislation and legal literature, there emerges a certain fear that free movement of persons is being exercised as a means of artificially manufacturing the connecting factors that lead to the application of legislation that is more favourable to the parties’ interests, thus circumventing the interests of the state whose law would otherwise be applicable.50 The wide opportunity for choice of the court having jurisdiction over divorce, introduced by the Brussels IIa Regulation (but already present in the Brussels II Convention), together with automatic recognition of decisions, has raised the fear of the use of forum shopping to obtain a divorce more easily.51 Furthermore, the Brussels II Convention was designed to expand the forums of jurisdiction to take account of mobility (‘involve[d] flexible rules to deal with mobility’52). The discussion on the means of combating forum shopping has been lively but of little concrete importance. This conclusion is confirmed by the decisions contained in the database where the problem does not emerge, even though some of the states involved have more restrictive legislation that could be circumvented through opportunistic behaviour. The risk of forum shopping is mentioned in the Rome III Regulation. The recitals consider this risk, albeit with regard to one particular aspect only, in which the opportunistic behaviour is exhibited by just one of the parties. Recital 9 provides that the rules laid down in the Regulation should ‘prevent a situation from arising where one

48 Dir 2004/38, Art 8 (Administrative formalities for EU citizens): ‘for periods of residence longer than three months, the host Member State may require Union citizens to register with the relevant authorities.’ Art 9 (Administrative formalities for family members who are not nationals of a Member State) establishes that Member States deliver a residence card to non-EU family members. 49 Both CJEU and national courts judgments attest this. 50 See generally J Meeusen, ‘System shopping in European private international law in family matters’ in J Meeusen, M Pertegás, G Straetmans and F Swennen (eds), International Family Law for the European Union (Antwerpen, Intersentia, 2007) 239; O Lopes Pegna, ‘Collegamenti fittizi o fraudolenti di competenza giurisdizionale nello spazio giudiziario europeo’ (2015) RDI 397. 51 See especially K Siehr, ‘Article 22’ in U Magnus and P Mankowski (eds), Brussels IIbis Regulation (Munich, Selp, 2012) 270. 52 Borrás Report (n 38) para 27.

362  Alessandra Lang of the spouses applies for divorce before the other one does in order to ensure that the proceeding is governed by a given law which he or she considers more favourable to his or her own interests’. Here the aim is to protect the other party as opposed to preserving the state’s interests. The Succession Regulation is more explicit, as can be seen in Recital 26: ‘Nothing in this Regulation should prevent a court from applying mechanisms designed to tackle the evasion of the law, such as fraude à la loi in the context of Private International Law’. The fear is precisely that the individual concerned takes advantage of free movement and changes their residence in order to change the court having jurisdiction and/or the applicable law as a means of evading the application of rules that protect interests that the state issuing those rules considers inalienable, but with which the individual concerned does not agree. Similar considerations are discussed by legal scholars in relation to other provisions.53 In short, there is a feeling that some of the connecting factors may offer an incentive for the parties to evade the application of rules that are disagreeable to them.54 A similar fear is also raised by the rules on free movement of persons.55 There are two aspects that are of interest here: the exercise of mobility to enjoy free movement of persons or to evade the application of unwelcome rules; and the manufacture of fictitious conditions in order to fall within the scope of free movement. The first aspect, which is more analogous to the fears associated with mobility in the context of private international family law, comes in various forms. One case that has received a lot of attention in the courts concerns the conduct of EU citizens residing in their state of origin and who, having been unable under national law to reunify with their family members, move their residence or their centre of activity to another Member State in order to invoke against the state of origin the application of the free movement of persons provisions and thus reunify with their family members.56 The Court of Justice has stated that exercising of free movement means that a national of a Member State who returns to their state must enjoy the same treatment as EU law attributes to an EU citizen who moves to a different state from that of their nationality. 53 See F Villata, ‘Regolamento 4/2009’ in C Baruffi and F Pocar (a cura di), Commentario breve ai Trattati dell’Unione europea, 2nd edn (Padova, Cedam, 2014) 636, suggests that Art 3(2) of the 2007 Hague Maintenance Protocol could provide the maintenance creditor with an incentive to relocate in another State where to enjoy better conditions. 54 Not all legal scholars share this feeling. See for instance, LS Rossi, ‘L’incidenza dei principi del diritto comunitario sul diritto internazionale privato: dalla “comunitarizzazione” alla “costituzionalizzazione”’ (2004) RDIPP 79. 55 See generally E Bergamini, ‘Il difficile equilibrio fra riconoscimento del diritto alla libera circolazione, rispetto della vita familiare e abuso del diritto’ (2006) DUE 347; A Adinolfi, ‘La nozione di “abuso di diritto” nell’ordinamento dell’Unione europea’ (2012) RDI 329; A Iliopoulou-Penot, ‘Libertés de circulation et abus de droit’, in E Duboit and A Maitrot de la Motte (dir), L’unité des libertés de circulation. In varietate concordia (Bruxelles, Bruylant, 2013) 185. 56 EU law lays down rules on family reunification of EU citizens (Dir 2004/38) and of third country nationals (Dir 2003/86). Family reunification of nationals is regulated by national legislations, which are often less protective than EU law. Hence in an attempt to bring family reunification within the scope of application of EU law, UK nationals go down the ‘Irish road’, Danes the ‘Swedish road’ and nationals of the Netherlands the ‘Belgian road’. For more comments, see respectively C Costello, ‘Metock: Free Movement and “Normal Family Life” in the Union’ (2009) CML Rev 610; M Elsmore and P Starup, ‘Comment on Jia’ (2007) CML Rev 789, and JB Bierbach, ‘The return of the Member State national and the destiny of the European Citizen’ (2008) EuConst 358.

Impact of the Regulations on the Free Movement of Persons in the EU  363 The exercising of free movement, however, requires the national concerned to have resided in another Member State under the conditions laid down by EU law, in other words as a worker, student, or otherwise with sufficient resources to support themselves financially, and to have resided together with the family member, in order to generate a family life to be protected. To use the words of the Court of Justice, ‘where the residence of the EU citizen in the host Member State has been sufficiently genuine so as to enable that citizen to create or strengthen family life in that Member State’.57 Then when he or she returns to their state of origin, he or she has the right to reunify with their family members, as if he or she were an EU citizen moving to a different state from the state of origin. It is different when the EU citizen remains resident in the state of origin but works as an employee or on a self-employed basis in another Member State. In this case, the situation falls within the scope of free movement of persons, and the individual concerned can invoke the application of the EU’s rules on family reunification, if the refusal of reunification may interfere with the exercise of freedom to provide services or with the freedom of movement for workers.58 A further situation that could be conceived, one that has not yet been raised before the Court of Justice, is that of the marriage of same-sex persons. They may be unable to get married in the state of origin, and could decide to move to another Member State and marry there in order to obtain recognition of the marriage in the state of origin, this time invoking a principle established in case law on recognition of personal status.59 From the cases briefly mentioned above, a difference seems to emerge between mobility according to its standard meaning of moving from one state to another and free movement. Mobility is not sufficient to bring the situation within the framework of free movement of persons. A second aspect in which the conduct of the parties can appear fraudulent or at least opportunistic and which is connected to Private International Law is that of marriages of convenience. These marriages are lawful but not genuine because they are ‘entered into in order to circumvent the provisions relating to entry and residence of nationals of non-Member States’.60 In the cases that have reached the Court of Justice, the question of marriages of convenience has been highlighted in relation to family reunification of spouses joined together in marriage.61 However, the problem may be relevant 57 Case C-456/12 O v Minister voor Immigratie, Integratie en Asiel and Minister voor Immigratie, Integratie en Asiel v B [2014] ECLI:EU:C:2014:135, para 51. 58 Case C-457/12 S v Minister voor Immigratie, Integratie en Asiel and Minister voor Immigratie, Integratie en Asiel v G [2014] ECLI:EU:C:2014:136. 59 We will come back to this subject below. 60 Case C-109/01 Secretary of State for the Home Department v Hacene Akrich [2003] ECR I-9607, ECLI:EU:C:2003:491, para 57. The Commission drew up this Handbook to provide the Member States with common definitions and uniform methods to assess a real or bogus marriage: Handbook on addressing the issue of alleged marriages of convenience between EU citizens and non-EU nationals in the context of EU law on free movement of EU citizens, SWD/2014/284. 61 Cases C-370/90 The Queen v Immigration Appeal Tribunal and Surinder Singh, ex parte Secretary of State for the Home Department [1992] ECR I-4265, ECLI:EU:C:1992:296; C-60/00 Carpenter [2002] ECR I-6279, ECLI:EU:C:2002:434; Case C-109/01 Secretary of State for the Home Department v Hacene Akrich (n 60); C-127/08 Blaise Baheten Metock and Others v Minister for Justice, Equality and Law Reform [2008] ECR I-6241, ECLI:EU:C:2008:449; Case C-456/12 O v Minister voor Immigratie, Integratie en Asiel and Minister voor Immigratie, Integratie en Asiel v B (n 57). In these cases, the question whether the marriage was one of convenience was raised hypothetically, because the genuine nature of the marriage was never in discussion.

364  Alessandra Lang to the EU’s Private International Law in the event that the marriage of convenience is dissolved or ended by divorce, in order to enable the party who took advantage of that situation to obtain the further advantages of a residence or work permit. On the basis of Directive 2004/38, the divorced spouse retains the right of residence in certain cases. If the spouse obtains the right of permanent residence (although it is unlikely that a marriage of convenience will last for five years), terminating the marriage will not result in the loss of the right of residence. The ease of finding a court having jurisdiction over divorce might encourage marriages of convenience but practice, or at least the practice gathered in the EUFam’s database, does not appear to substantiate this abstract fear.62

IX.  Obstacles to Free Movement of Persons and Private International Family Law From a free movement perspective, the harmonisation of private international family law can facilitate the exercise of free movement in various ways, effectively eliminating the obstacles that could impair the enjoyment of that right. The right of residence is granted to EU citizens if they are workers or self-employed persons or have sufficient resources not to become a burden on state finances (Article 7 of Directive 2004/38).63 The source of the resources can be very diverse. Resources must be available to the person concerned, but do not necessarily need to be ‘personal’. This means that resources can be provided to the person concerned by a third party. According to case law, the third party in question may be the parent, even if a thirdcountry national,64 the unmarried partner,65 or the spouse, even if a third-country national.66 The third party does not need to have a legal (statutory or contractual) obligation to provide the resources. In contrast, if the EU citizen obtains their resources from a maintenance claim, the fact that such an obligation, if determined by a court judgment, is automatically recognised means that it is possible to meet the requirement for residence. From this perspective, therefore, the Maintenance Regulation eliminates a possible obstacle to free movement of persons. Compared to the Brussels Ia Regulation, the Maintenance Regulation helps the creditor who relies on the payments by the debtor,

62 Only one case can be cited where the court was concerned with a marriage of convenience, where it was proven that one of the spouses intended to take avail of the residence permit (Cour d’appel de Grenoble, 30 August 2016 No 15/01463, FRS20160830). However, this was not a matter relevant to free movement of persons law because one of the spouses was an EU citizen residing in his state of origin. 63 In this regard, a Croatian decision is interesting: the family used to live in the state of the forum (Croatia) and after divorce the mother moved to Sweden in search of a job. The court gave the children’s custody to the mother, since it deemed this decision to be in keeping with their best interest. (Općinski sud u Sisku, 18 March 2016, P-Ob-578/15, CRF20160318) One wonders whether the court took account of the rights that the parent enjoyed in Sweden. In fact, as jobseekers, EU citizens enjoy a limited right of residence (only for six months) and no right to social assistance, unless national law provides otherwise. 64 Cases C-413/99 Baumbast and R v Secretary of State for the Home Department [2002] ECR I-7091, ECLI:EU:C:2002:493; C-200/02 Kunqian Catherine Zhu and Man Lavette Chen v Secretary of State for the Home Department [2004] ECR I-9925, ECLI:EU:C:2004:639. 65 Case C-408/03 Commission of the European Communities v Kingdom of Belgium [2006] ECR I-2647, ECLI:EU:C:2006:192. 66 Case C-218/14 Kuldip Singh and Others v Minister for Justice and Equality [2015] ECLI:EU:C:2015:476.

Impact of the Regulations on the Free Movement of Persons in the EU  365 because it makes the declaration of enforceability of the decision unnecessary. In addition, decisions which establish a maintenance claim are enforceable even though the relationship underlying the maintenance obligation cannot be recognised. Besides the EU citizen, their family members (spouse, partner, descendants, and relatives in the ascending line) have the right of residence. Therefore, although the assessment of the validity of marriage, registered partnership, adoption and paternity is key, it is not regulated by EU law and there are ‘systematic gaps’ in the Private International Family Law of the EU.67 However, it has to be recalled that none of the Regulations in force define ‘marriage’ or ‘spouse’,68 and even if the Regulation on the Property Consequences of Registered Partnerships gives a definition of registered partnership, it points out that the definition is only instrumental to the application of the regulation itself.69 Recognition of family status obtained in other Member States would therefore be extremely important for the persons concerned.70 It is well known, however, that this objective cannot be achieved at present, due to the unanimity requirement. Nor, for the same reasons, would it be any easier for the EU to adopt Private International Family Law acts, which could provide a harmonised solution to the problem and make the recognition of family status smoother. Therefore, uncertainty may continue to exist about the recognition of status which, having been obtained in one state, is asserted in another State where it is unknown or not possible. Although legal scholars have looked at this subject in depth and proposed various solutions about how to achieve recognition through the use of different techniques,71 including drawing inspiration from the case law of the Court of Justice on the recognition of names,72 no particular problems seem to be raised in practice. Instead, a different aspect – evidence of status – is subject to a regulation that will undoubtedly facilitate free movement of persons,73 albeit without following a Private International Law approach.

67 X Kramer et al, A European framework for private international law: current gaps and future perspective (Brussels, European Parliament, 2012) 67. 68 Matrimonial Property Regime Regulation, Recital 17. 69 Art 3(a) and Recital 17. 70 A Romanian judge asked the Court of Justice whether the term ‘spouse’ in Art 2 of Dir 2004/38 included a same-sex spouse. The Court did not answer to this question, but decided the case under Art 21 TFEU. It said that, in the case under examination, where an EU citizen and a third-country national were married in Belgium and created a family life, Romania could not refuse to grant the third-country national a right of residence on the ground that its law does not recognise marriage between persons of the same sex: Case C-673/16 Relu Adrian Coman [2018], ECLI:EU:C:2018:385. 71 See R Baratta, ‘Il regolamento comunitario sul diritto internazionale privato della famiglia’ in P Picone (a cura di), Diritto internazionale privato e diritto comunitario (Padova, Cedam, 2004) 197 ff; L Tomasi, La tutela degli status familiari nel diritto dell’Unione europea (Padova, Cedam, 2007); M Melcher, ‘(Mutual) recognition of registered relationship via EU private international law’ (2013) JPIL 149; C Kohler, ‘Towards the recognition of civil status in the European Union’ 15 (2013/2014) YBPrIL 13; P Lagarde, ‘La méthode de la reconaissance est-elle l’avenir du droit international privé?’ 371 (2015) Recueil de Cours 18; S Marino, ‘Il diritto all’identità personale e la libera circolazione delle persone nell’Unione europea’ (2016) RDI 287. 72 Cases C-148/02 Carlos Garcia Avello v Belgian State [2003] ECR I-11613, ECLI:EU:C:2003:539; C-353/06 Stefan Grunkin and Dorothee Regina Paul [2008] ECR I-7639, ECLI:EU:C:2008:559. 73 Regulation (EU) 2016/1191 of the European Parliament and of the Council of 6 July 2016 on promoting the free movement of citizens by simplifying the requirements for presenting certain public documents in the European Union and amending Regulation (EU) No 1024/2012 [2016] OJ L 200/1, which is founded on Art 21(2) TFEU and not on Art 81. E Bonifay, ‘La circulation des citoyens européens entre États membres au lendemain de l’adoption du règlement “documents publics”’ (2017) JDI.

366  Alessandra Lang In contrast, judgments on divorce or dissolution of marriage which are issued in another Member State are automatically recognised. Often the principle of favor divortii expressed in the Brussels IIa Regulation is justified by reference to free movement of persons and by taking account of the position of the spouse who is applying for divorce or for dissolution of marriage. The Court of Justice explained that the jurisdictional rules laid down in Article 3 of the Brussels IIa Regulation are designed ‘to protect the rights of a spouse who has left the country of common habitual residence’.74 Indeed, it is very common that the spouse, who moved to the state of the other spouse because of the marriage, comes back to the state of origin in cases of matrimonial breakdown,75 and the Regulation is intended not to leave them without a competent court. Legal scholars have pointed out that the weaker party in divorce proceeding is the less resourced one, such as the party who cannot receive legal advice on which court to go to in order to get better divorce conditions. Therefore, the spouse left behind can be in a weaker position than the spouse who left the state of their common habitual residence. This is all the more so when the loss of spousal status brought about by divorce or dissolution can affect the other spouse’s right of residence. As already pointed out, the family member’s right of residence derives from that of the EU citizen. Since that right exists for as long as the EU citizen retains the right of residence, it would be lost in the event of dissolution of the family ties. Article 13 of Directive 2004/38 governs the effects of dissolution of matrimonial ties76 (or termination of the registered partnership)77 on the right of residence. Former spouses retain the right of residence if certain conditions are met. That provision is particularly important because former spouses could otherwise find themselves in a situation of weakness and the risk of losing the right of residence could prompt them to continue the marriage even if they wished to end it. With free movement of persons, the weaker party is the one whose migratory status depends from their spouse. As regards the conditions under which spouses retain the right of residence in the event of divorce, the rules differ according to their nationality. If they are EU citizens, they retain the right of residence on the condition that they are workers or self-employed persons. If they are non-Union citizens, they must fall into one of the four categories set out in Article 13(2) and must be workers or self-employed persons. As far as resources

74 Case C-294/15 Edyta Mikołajczyk v Marie Louise Czarnecka and Stefan Czarnecki [2016] ECLI:EU:C:2016:772, para 50. 75 The case law of both the CJEU and national courts whose decisions are gathered in the database confirm this trend. 76 The dissolution of matrimonial ties can be the result of annulment or divorce. Nothing is stipulated in the event of separation, which, as a legal institution, is not recognised by all Member States, particularly because matrimonial ties are not dissolved and spousal status is not lost. The principle has been upheld by the Court, in a case in which the spouses, although remaining married, had commenced relationships with other individuals, and a subsequent new marriage (Case C-244/13 Ewaen Fred Ogieriakhi v Minister for Justice and Equality and Others [2014] ECLI:EU:2014:2068). The decision is very favourable to the spouse, a thirdcountry national, because it allows for the retention of EU rules as opposed to national rules on immigration but, in the absence of children, it is hard to understand what interest it protects – certainly not family life which, in this case, had clearly ended. 77 The Court has ruled out the possibility of Art 13 being applied in the case of a non-formalised cohabitation relationship: Case C-45/12 Office national d’allocations familiales pour travailleurs salariés (ONAFTS) v Radia Hadj Ahmed [2013] ECLI:EU:C:2013:390, para 37.

Impact of the Regulations on the Free Movement of Persons in the EU  367 are concerned, the maintenance that a former spouse is required to pay to the other could be regarded as adequate.78 The four scenarios in which the family member can retain the right of residence concern: 1) the duration of the marriage (three years, including one in the host Member State, on the date of initiation of the proceedings for the dissolution of the marriage); 2) the custody of children, based on a consensual decision or a court order; 3) the grant of rights of access to a minor child, provided that it has been established that access must be in the host Member State and for as long as is required; and 4) difficult circumstances, such as having been a victim of domestic violence while the marriage existed, which justify retention of the right of residence. The protective scope of the provision is however weakened by its restrictive interpretation. The Court has stated that Article 13 only applies if the EU citizen resides in the host state at the time of initiating divorce proceedings.79 The reason for this is that the provision protects an existing right of residence, which would be extinguished as a result of divorce. If, however, the EU citizen moves to another state, leaving their spouse behind, and subsequently divorces, the spouse has already lost the right of residence (unless the conditions set out in Article 12 of the Directive apply) and Article 13 does not apply. The interpretation is understandable if a certain period of time elapses between departure and divorce.80 But if it were followed in circumstances where the divorce proceedings were initiated immediately after departure, the EU citizens would have the power to decide the fate of their spouse, which Article 13 instead seemed to neutralise. Article 12 of the Directive governs the retention of the right of residence by the family member in the event of departure (or death) of the EU citizen. For the purposes concerning us here, where there are children enrolled at a school to pursue their studies there, the departure of the EU citizen does not affect the children’s right of residence or the right of residence of the parent who has custody of them, irrespective of nationality. That right of residence is not subject to any further condition. Moreover, family members who are EU citizens (but not family members who are third-country nationals) retain the right of residence, in the event of departure of the EU citizen, provided that they meet the conditions for residence on a personal basis. It follows that, within the context of the Directive, the protection of the family member’s right of residence is more limited in the case of departure compared with divorce, because the family should remain united and follow the beneficiary of free movement.

78 Guild, Peers and Tomkin (n 5) 167. 79 Case C-218/14 Kuldip Singh and Others v Minister for Justice and Equality (n 66), para 61, confirmed by C-115/15 Secretary of State for the Home Department v NA [2016] ECLI:EU:C:2016:487. The NA case was different from the Singh and others case because the applicant in the main proceedings had been mistreated during the marriage. The Court’s response does not change. The Court does not believe that the literal content of Art 13 allows for a different interpretation, unlike Advocate General Wathelet, who states that the need to protect the weak party can justify extending its interpretation. Anyhow, in NA the Court concludes that the applicant in the main proceedings has the right of residence in the host state as the parent having custody of a child (attending school) of a migrant worker. 80 Mrs NA’s husband disowned her less than six months after leaving the United Kingdom. The spouses of the three applicants in Singh and others initiated divorce proceedings six to 12 months after they had left the country.

368  Alessandra Lang Directive 2004/38 seeks to achieve a protective balance. However, this balance could be jeopardised by the interpretation that the Court of Justice gave in Singh and others, combined with the divorce-friendly regime laid down by the Brussels IIa Regulation, which enable the spouse to seise the court of their state of nationality both where the spouses have the same nationality (Article 3(1)(b)) and where he or she transfers their habitual residence provided that six months have elapsed (Article 3(1)(a), sixth indent), and grant recognition to all divorce decisions without control as to the international jurisdiction of the court that issued the judgment. A different interpretation of Articles 12 and 13 of Directive 2004/38 would, however, be possible. The premise is that the two provisions concern different situations: under the former the family ties still exist, whereas under the latter they are cut. Article 12 governs the consequences of the EU citizen’s departure but does not define when the person is considered to have departed. On the one hand, the emphasis could be placed on intentions and the EU citizen could be considered as having departed if he or she leaves the state with the intention of not returning and of moving elsewhere. However, the Court of Justice has shown on various occasions that it does not attach importance to the reasons why a person chooses to exercise free movement.81 We propose instead a systematic interpretation of Article 12 in conjunction with Article 16(3) of the Directive, which provides that for the purposes of acquiring the right of permanent residence, continuity of residence is not affected by temporary absences of the EU citizen from the state of residence not exceeding a total of six months. If an absence of that duration is irrelevant for the purposes of considering the person as being continually present in the host state, it could equally be considered relevant for the purposes of assessing when the person ought to be considered as having departed. Thus, it could be conceived that as soon as he or she leaves the host state and for a period of six months, the person has not departed but is still present in the country. As to Article 13, the interpretation according to which the citizen of the EU must reside in the host state at the time of initiating divorce proceedings does not harmonise with the regime provided for by the Brussels IIa Regulation. Instead, the place of the divorce proceedings should be immaterial. The only relevant factors are the conditions laid down by Article 13: if the other spouse satisfies them, the protective regime should apply. Ease of divorce and retention of the right of residence for the spouse (especially if not a citizen of the EU) could encourage parties to enter into marriages of convenience, which, as pointed out above, are lawful but concluded in order to manufacture the conditions for obtaining a right of residence. The descendants of the EU citizen or of their spouse or partner also enjoy the right of free movement of persons. Directive 2004/38 simply provides that the descendant is

81 According to the Court of Justice, the reasons pursued by the citizens of the Union when they decide to move to another state are irrelevant and cannot be taken into account to rule out the application of EU law: Cases C-53/81 D.M. Levin v Staatssecretaris van Justitie [1982] ECR 1035, ECLI:EU:C:1982:105, para 21; C-413/01 Franca Ninni-Orasche v Bundesminister für Wissenschaft, Verkehr und Kunst [2003] ECR I-13187, ECLI:EU:C:2003:600, paras 42–44; C-46/12 LN v Styrelsen for Videregående Uddannelser og Uddannelsesstøtte [2013] ECLI:EU:C:2013:97, para 47. In contrast case C-333/13 Elisabeta Dano and Florin Dano v Jobcenter Leipzig [2014] ECLI:EU:C:2014:2358, para 78.

Impact of the Regulations on the Free Movement of Persons in the EU  369 a family member of the EU citizen and can reunite with the parent who exercises free movement on a personal basis. The EU citizen does not need to hold the right of custody (in the sense of the right to establish the child’s habitual residence), not even where the other parent is alive and does not accompany the EU citizen. In contrast, Directive 2003/86 on family reunification of third-country nationals provides that reunification is enjoyed by: the minor children including adopted children of the sponsor where the sponsor has custody and the children are dependent on him or her. Member States may authorise the reunification of children of whom custody is shared, provided the other party sharing custody has given his or her agreement (Article 4(1)(c)).

The right to family reunification connected with the exercise of the right of free movement could be abused by the EU citizen to move the child’s habitual residence and remove them from the parent with custody or in breach of the rights of the other parent with custody. To avoid the abuse of free movement and to guarantee the rights of parents and children to have a normal relationship, the rules on child abduction seem particularly appropriate. The parent’s right to exercise free movement with the child or to be reunited with the child is limited by the existence of the right of the parent with custody to decide on the child’s habitual residence. Free movement must not affect the exercise of the rights of the parent who has the right of custody or, if custody is shared, the manner in which it is exercised. The Brussels IIa Regulation guarantees this coordination because custody decisions are also effective in the other Member States. Free movement cannot be used to circumvent national provisions that have granted the other parent the right to live with the child. In this way, the best interests of the child are safeguarded. Directive 2004/38 mentions the interests of the child in Article 28 titled ‘Protection against expulsion’, stipulating that the child cannot be expelled ‘except if the expulsion is necessary for the best interests of the child’, which is not relevant here. However, Recital 31 states generally that ‘this Directive respects the fundamental rights and freedoms and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union’, allowing for an interpretation of the Directive consistent with the Charter, and to provide the protection that the Charter prescribes. Therefore, it can be maintained that the Directive, in the part where it establishes that the child has the right of residence with the parent who has exercised free movement, must be construed in the sense that the parent must have the right to decide on the child’s residence and, if he or she has that right, he or she must exercise it in accordance with the provisions of the applicable legislation. This interpretation serves to achieve the best interests of the child, which is the objective of the part of the Brussels IIa Regulation on parental responsibility. The very existence of the regulation, establishing a harmonised system applicable in all Member States, reduces the obstacles to free movement that could be created if states were unilaterally responsible for the protection of the child. European Union citizens and their family members enjoy free movement if they can prove their identity and nationality. The matters relating to the issuance of documents are not regulated by EU law as such. However, since identity documents (and passports among them) are the principal means to prove one’s nationality, they have a clear connection with freedom of movement. Uncertainty under national law on the renewal of passport might hinder the free movement of the holder. Therefore, the CJEU

370  Alessandra Lang Ivanova Gogova case82 shed some lights about a potential obstacle to free movement pertaining to the renewal of the passport of a minor. Bulgarian law required the consent of both parents. However, the parents lived apart and the father did not give his consent. The mother was resident in Italy but submitted an action to remedy the lack of agreement of the other parent to a court in Bulgaria.83 The Court of Justice explained that such an action involved parental responsibility and came within the scope of application of the Brussels IIa Regulation. Therefore, the court of the ‘habitual residence’ of the minor (Italy in the present case) had jurisdiction and its decision was to be taken into account by the state of origin of the minor.

X.  Concluding Remarks Private International Family Law and free movement of persons law are two different and distinct regulatory systems. The interferences between the two seem rather fortuitous and unintended. In some cases they reinforce one another, whereas in others they pursue different aims. Better coordination would be a valuable asset for both systems.

82 Case C-215/15 Vasilka Ivanova Gogova v Ilia Dimitrov Iliev [2015] ECLI:EU:C:2015:710. 83 The case does not stand alone: the EUFAM’s database gathers three similar decisions (Районен съд – Казанлък, 11 June 2014, 1018/2014, BGF20140611; Върховен касационен съд, 9 January 2014, 6366/2013, BGT20140109; Върховен касационен съд, 12 January 2011, BGT20110112).

26 Case Law of the European Court of Human Rights on the Application of (Some of) the EU Family Regulations PATRICK KINSCH

I. Introduction The European Court of Human Rights (ECtHR) has important tasks, but the ­authoritative construction of the European family regulations is not part of them. The ECtHR applies only one international instrument, the European Convention on Human Rights. Nonetheless, a presentation of its case law is of interest in the present context: while the ECtHR is not a specialist court in the area, some of its cases touch on the application of the EU family regulations and are authoritative as to the requirements of European human rights law in that field – as in innumerable others. Of all the various regulations of the EU in the field of family law, only three have played a role, up to now, in the case law of the ECtHR.1 A few cases relate to the Maintenance Regulation, and the overwhelming majority of cases concern one specific (but important) issue under the Brussels  II and Brussels  IIa Regulations, namely ­international child abductions and the issuing and enforcement of orders for the return of children. None of the remaining EU regulations in the field of international family law have had any importance before the ECtHR. Only for the sake of academic completeness: there is a fleeting reference to the provision on forum necessitatis (Article 11) of the Succession Regulation in the Grand Chamber judgment in Naït-Liman v Switzerland. But this appears only as a comparative reference in a section on ‘European Union law’, to which the Court ‘consider[ed] it appropriate to refer’.2

1 The case law of the ECtHR is available on its HUDOC database at hudoc.echr.coe.int/eng. This contains a full collection of the cases decided by the Court and by the former European Commission of Human Rights. 2 Naït-Liman v Switzerland App no 51357/07 (ECtHR, 15 March 2018) § 92. The case itself did not, of course, concern anything as mundane as the EU family regulations. It concerned torture in Tunisia, and the denial of a forum in Switzerland for a claim for damages against the Tunisian state and its former Minister of the Interior.

372  Patrick Kinsch

II.  Two Cases Relating to the Maintenance Regulation The two cases which will be presented here concern the Maintenance Regulation only indirectly: in fact, both of them show that the Regulation, the procedures of which had not been used, would have allowed a more effective enforcement of maintenance ­obligations towards children. These cases can be cited, therefore, as indirect confirmation from the ECtHR that the Maintenance Regulation is in fact a useful mechanism for preventing violations of human rights.

A.  Battista v Italy3 This was a case involving the refusal of a new passport to the applicant (a man residing in Naples), who had requested that the name of his son be added to it while the applicant and his wife were in judicial separation. The new passport was refused by the guardianship judge on the specific grounds that the applicant was not making the maintenance payments ordered by the president of the court at the time of the judicial separation. To make things worse, the Naples Police Commissioner (Questore di Napoli) ordered the applicant to surrender his passport, and amended his identity card, making it invalid for foreign travel. All appeals to Italian courts were to no avail: the actions by the Questore were far from arbitrary, since under an article of the Italian passport law,4 ‘a passport may be withdrawn from a person who is abroad and is unable to prove that he or she has made maintenance payments as ordered by a court decision in respect of his or her minor children’. Before the ECtHR, the applicant relied on an important human right, namely the freedom to leave any country, including one’s own (Article 2 of Protocol No 4 to the Convention). Was the withdrawing of the applicant’s passport, an indisputable interference with that right, justified by the need to protect his children? Was it necessary to ensure that the applicant made his maintenance payments, thus preventing the commission of an offence, namely violation of the obligations to assist one’s family? While the Court considered that the measures imposed on the applicant pursued a legitimate aim, namely the protection of the rights of others – in the present case, the children’s right to receive the maintenance payments – it was held that it did so in a wholly disproportionate manner, thus violating the right to freedom of movement. The Italian authorities had not ‘consider[ed] it necessary to examine the applicant’s personal situation or his ability to pay the amounts due, and applied the impugned measure automatically’, and they had not sought to balance the applicant’s rights with those of his children.5 Above all, misuse of his passport by the applicant to abscond to



3 Battista 4 Section 5 §

44.

v Italy App no 43978/09 (ECtHR, 2 December 2014). 12 of Law No 1185 of 21 November 1967 as amended by the Passports Act 2003 (Law No 3).

Case Law of the European Court of Human Rights  373 another country would not have been successful, at least not if in the new country of residence, an efficient instrument for the recovery of maintenance payments, such as the Maintenance Regulation, were in place: the Court notes that there has been civil-law cooperation at European and international level on the issue of the recovery of maintenance payments. It points out that there exist methods for obtaining recovery of debts outside national boundaries, in particular Council Regulation (EC) no. 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, the Hague Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance, and the New York Convention on the Recovery Abroad of Maintenance. Those instruments were not taken into account by the authorities when applying the impugned measure. They had merely emphasised that the applicant could have travelled abroad using his passport and thus succeeded in evading his obligation.6

B.  Orel v Croatia7 Mrs Orel and her two children sought to enforce a judgment for maintenance rendered by a Croatian court against the father of the children, who had emigrated to the United States. Having been unsuccessful, they turned to the ECtHR and brought an application against Croatia for failure to comply with its ‘positive obligation’ to assist the applicants in enforcing the judgment abroad. Such a positive obligation is considered in the Court’s case law as resulting from the right to effective enforcement of a judgment given by a national court, a corollary of the right to a fair trial.8 It was held by the Court, which rejected the application as manifestly unfounded, that the Croatian authorities could not be blamed for unenforceability of the maintenance judgment in the United States. Croatia had a network of international enforcement mechanisms in place, including the Maintenance Regulation. The problem was that none of these applied to the United States, a state that (unlike Croatia) was not a party to the United Nations Convention on the Recovery Abroad of Maintenance of 1956. And the United States is not bound by the Maintenance Regulation to which the d ­ ecision of the Court expressly refers.9

6 § 45. 7 Orel v Croatia App no 51506/13 (ECtHR, 7 June 2016). 8 That specific use of the positive obligations of states in the context of international enforcement of judgments is not illogical (indeed, it is rather unproblematic to consider that the guarantee of a fair trial entails a right to effective enforcement of judgments rendered in a Contracting State such as Croatia, and that if enforcement is only possible in a non-Contracting State such as the United States, the Croatian authorities have some kind of positive obligation to assist those having obtained a judgment in Croatia to enforce it abroad). But in general, it will be against the recognising (or, in some cases, non-recognising) state that the proceedings will be brought: for a discussion of the problematic aspects thereof, see P Kinsch, ‘Enforcement as a Fundamental Right’ (2014) NIPR 540. 9 At § 46 of the decision, in the preliminary section on ‘Relevant international and European law’.

374  Patrick Kinsch

III.  Child Abduction Cases under the Brussels II and Brussels IIa Regulations and under the European Convention on Human Rights The cases dealing with the human rights aspects of international child abductions have become so numerous that they have become a well-defined, distinct area of ­activity of the ECtHR. Contrary to other types of cases (in particular, cases on choice-of-law problems, which are few and far between),10 they have become part of the routine work of the Court, whose jurisprudence in the area of child abductions has frequently been studied.11 It would not seem worthwhile to repeat the content of those studies and to present again all of the Court’s cases. Instead, we will concentrate on two points. First, the relevant Article of the Convention, Article 8 and its guarantee of the right to enjoy family life, creates an obligation for states to strike a balance between two aspects of family life, which are not easily reconciled in the case of child abduction. Second, several provisions of the Brussels  IIa Regulation make it difficult to maintain that balance required by the Convention and therefore create the potential for a conflict between EU law and European Human Rights Law.

A.  The Two Faces of Article 8 of the Convention Under Article 8 of the Convention, ‘everyone has the right to respect for … his family life’. What this right means in the context of international child abductions had been defined first (before the cases regarding the application of the Brussels II and Brussels IIa Regulations started coming in) by reference to the functioning and sometimes the malfunctioning of the 1980 Hague Child Abduction Convention. In numerous cases concerning orders for the return of abducted children to their former place of habitual residence, the most prominent of which are Maumousseau and Washington v France,12 Neulinger and Shuruk v Switzerland,13 and X v Latvia,14 the Court insisted that there was a need for a ‘fair balance’ to be struck between various interests: those of the child, those of the mother, those of the father, and society’s interest in public order (and in

10 The most remarkable case on choice of law – not involving any of the European regulations – of the last years was Harroudj v France App no 43631/09 (ECtHR, 4 October 2012), involving the question of discrimination by a choice of law rule in the context of applying a child’s national law to a request for its adoption. See also, in the related area of the recognition or non-recognition of foreign surrogacy arrangements, the cases of Mennesson v France App no 65192/11 (ECtHR, 26 June 2014), Labassee v France App no 65941/11 (ECtHR, 26 June 2014) and Foulon and Bouvet v France App nos 9063/14 and 10410/14 (ECtHR, 21 July 2016), which go into the issue of the compatibility with the Convention of various private international law techniques, namely public policy and (in Foulon and Bouvet) fraus legis. 11 See in particular ch 13, ‘Right to Respect for Family Life and the Rights of the Child: International Child Abductions’ in J Fawcett, M Ní Shúilleabháin and S Shah (eds), Human Rights and Private International Law (Oxford, OUP, 2016), which gives a complete overview of the cases and those studies of them that have been published in English. 12 Maumousseau and Washington v France App no 39388/05 (ECtHR, 6 December 2007), § 62. 13 Neulinger and Shuruk v Switzerland App no 41615/07 (ECtHR, 6 July 2010), § 134. 14 X v Latvia App no 27853/09 (ECtHR, 26 November 2013), § 95.

Case Law of the European Court of Human Rights  375 respect for judicial decisions ordering the return of the children). That line of cases was then extended, in the Court’s jurisprudence, to cases involving the EU Regulations.15 Here is a quotation to that effect from a recent case involving the Brussels IIa Regulation: In relations between EU Member States the rules on child abduction contained in the Brussels  II[bis] Regulation supplement those already laid down in the Hague Convention. Both instruments associate the best interests of the child with restoration of the status quo by means of a decision ordering the child’s immediate return to his or her country of habitual residence in the event of unlawful abduction, while taking account of the fact that nonreturn may sometimes prove justified for objective reasons that correspond to the child’s best interests, thus explaining the existence of exceptions, specifically in the event of a grave risk that the child’s return would expose him or her to physical or psychological harm or otherwise place him or her in an intolerable situation in accordance with Article 13(b) of the Hague Convention … This task falls in the first instance to the national authorities of the requested State, which have, inter alia, the benefit of direct contact with the parties concerned. In ­fulfilling their task under Article 8, the domestic courts enjoy a margin of appreciation, which, however, remains subject to European supervision whereby the Court reviews under the Convention the decisions that those authorities have taken in the exercise of that power.16

In a child abduction case, by definition, the interests of the two parents are never in harmony. The typical case (judging from the ECtHR case law) has become one where the primary caregiver of the children, who is usually – ‘usually’ being understood, again, not in normative terms but in empirical terms based on the cases before the Court – the children’s mother, takes advantage of the ease of international travel to ‘leave with the children, usually to go back to her own family’.17 In such cases the Convention’s right to family life may, depending on the circumstances, be relied on by both parents to opposing ends. For instance, the father may claim his right to live with his children in the children’s place of habitual residence before the abduction, while the mother exercises her right to freedom of movement (abducting the children in the process) and wishes to continue living with the children in their new place of residence. The right to family life will, prima facie, apply in all these cases. If invoked by the ‘other parent’ against the abducting parent, it will take the form of positive obligations of states under the Convention to enforce an order from a foreign jurisdiction for the children’s return. If invoked by the abducting parent, the same right to family life works potentially as

15 Such cases have by now become numerous. The most famous of them, to which we shall return later, is the Alpago/Povse case, brought first before the ECJ, judgment of 1 July 2010 in Case C-211/10 PPU Doris Povse v Mauro Alpago [2010] ECR I-6673, ECLI:EU:C:2010:400, then before the ECtHR by the mother, Sofia Povse and Doris Povse v Austria App no 3890/11 (ECtHR, 18 June 2013) held that Austria had not violated the applicants’ right to family life by eventually ordering the enforcement of an Italian order for the return of the child to Italy, and finally, before the ECtHR as well, by the father, MA v Austria App no 4097/13 (ECtHR, 15 January 2015) held that there had been a violation of the father’s right to efficient enforcement of the return of the child to Italy. On that case, see also below, section B.ii. 16 Judgment Sévère v Austria App no 53661/15 (ECtHR, 21 September 2017), § 100. 17 See the British case Re E (Children) [2011] UKSC 27 para 6. This opinion explains the change that has taken place in the paradigmatic situation in the field of international child abduction, from the case of a ‘dissatisfied parent who did not have the primary care of the child snatching the child away from her primary carer’, which the authors of the 1980 Hague Child Abduction originally had in mind, to a situation of the kind mentioned in the text.

376  Patrick Kinsch a protection against unjustified interference with existing family life, both against the unjustified entering of a return order18 and against its enforcement abroad.19 Since the Convention potentially extends protection to the contradictory interests of both parents, it cannot do without a rule for resolving conflicting interests. Hence the need, proclaimed by the Court’s case law, for Contracting States to strike ‘a fair balance’ between the interests of both parents, together with the interests of the children and of society as a whole. When seeking to strike this balance, states must take into account ‘that the best interests of the child must be of primary consideration and that the objectives of prevention and immediate return correspond to a specific conception of “the best interests of the child”’.20 Where the matter becomes truly difficult is where the abducting parent plausibly argues that the best interests of the child and the interest in enforcing an order for his or her return to the former habitual residence truly are at odds. In this instance, the ECtHR will give preference to the best interests of the child, in line with Article 3(1) of the United Nations Convention on the Rights of the Child.21 This treaty deals specifically with children’s rights, according to which ‘in all actions concerning children … the best interests of the child shall be a primary consideration’. In general, the Court’s case law is based on the idea that the mechanism provided for by the 1980 Hague Child Abduction Convention or (by extension) by the EU Regulations for the swift return of children to their habitual residence ‘correspond[s] to a specific conception of “the best interests of the child”’;22 the case law is based on the Court’s holdings that there is a positive obligation for states to enforce orders for the return of children. But that positive obligation does not correspond to a hard and fast rule. The reason for its existence remains the protection of the interests of an individual: the child. Its aim is not to promote the integration of the intra-EU area of security, freedom, and justice in civil matters or to uphold the principle of mutual trust between states: those are aims of the EU Regulations in the area, including the Brussels II and Brussels IIa Regulations, but they are not aims that the European Convention on Human Rights – a project of the Council of Europe, not of the EU – would specifically pursue. Indeed, the differences in the aims pursued may lead to a conflict.

B.  The Potential for a Conflict between EU Law and European Human Rights Law i.  The Areas of Friction As a consequence of the difference in the policies pursued, there remain potential areas of friction between Article 8 of the ECHR and a number of provisions of the Brussels IIa Regulation. In order to promote the integration of the EU, Articles 11(8), 18 A situation illustrated by a case involving the Brussels IIa Regulation, Šneersone and Kampanella v Italy App no 14737/09 (ECtHR, 12 July 2011). 19 As illustrated, among others, in a Hague Convention context by the three cases cited above (nn 12 to 14) which concern the relations with non-European states, or in the Brussels IIa context by MA v Austria (n 15). 20 See, eg, X v Latvia (n 14) § 95. 21 Signed in New York on 20 November 1989, UNTS, vol 1577, 3. 22 Sévère v Austria (n 16) § 101.

Case Law of the European Court of Human Rights  377 40 and 42 of that Regulation allow the courts of the Member State of the child’s habitual residence to order the immediate return of the child, regardless of a prior judgment of non-return pursuant to the 1980 Hague Child Abduction Convention. The order benefits from automatic enforceability in the other Member States ‘without the need for a declaration of enforceability and without any possibility of opposing its recognition’ (Article 42(1)), on the European enforcement order model.23 In two respects, that model potentially conflicts with the model inherent in Article 8 of the Convention. First, the Convention ultimately makes the best interests of the child prevail over the idea of enforcing orders issued in another state. If the courts ordered the return of the child and clearly had it wrong in ordering the return, the ECtHR will come to the conclusion that the originating state has violated the right to family life.24 That is not, as such, incompatible with the Regulation, which does not say that the return of children must always be ordered; on the contrary, the Regulation provides for procedural safeguards against unwise orders for the return of children.25 The problem arises at the level of the automatic enforcement of a return order in another Member State. It has been held by the Court, in cases where it was not the Regulation but the Hague Convention that applied, that it resulted from the ‘principles that have emerged from its case law on the issue of the international abduction of children’ that: [a] child’s return cannot be ordered automatically or mechanically when the Hague Convention is applicable, as is indicated by the recognition in that instrument of a number of exceptions to the obligation to return the child (see in particular Articles 12, 13 and 20), based on considerations concerning the actual person of the child and its environment, thus showing that it is for the court hearing the case to adopt an in concreto approach to it.26

The question arises, then, whether that principle also applies in cases of application of the Regulation. Of course, the Regulation itself does not contain any ‘exceptions to the obligation to return the child’, quite on the contrary. But does the automatic enforceability of return orders not bring with it, precisely, the risk of a violation by the returning state? Second, the ECJ has held in Doris Povse v Mauro Alpago,27 on the construction of the Brussels IIa Regulation, that: enforcement of a certified judgment cannot be refused in the Member State of enforcement because, as a result of a subsequent change of circumstances, it might be seriously detrimental

23 The European Enforcement Order Regulation was the first implementation, in civil matters, of the decision at the Tampere European Council of 15 and 16 October 1999 to gradually do away with the Exequatur procedure for judgments rendered within the Union. 24 As happened in Šneersone and Kampanella v Italy (n 18), where it was held that the decision of an Italian court, issued under Brussels IIa, to order the return of a child to Italy violated by itself the rights of the child and his mother. 25 Art 40(2): such orders can be given ‘only if: (a) the child was given an opportunity to be heard, unless a hearing was considered inappropriate having regard to his or her age or degree of maturity; (b) the parties were given an opportunity to be heard; and (c) the court has taken into account in issuing its judgment the reasons for and evidence underlying the order issued pursuant to Art 13 of the 1980 Hague Convention’. 26 MR and LR v Estonia App no 13420/12 (ECtHR, 15 May 2012) § 37 (vi). 27 Case C-211/10 PPU, Doris Povse v Mauro Alpago (n 15).

378  Patrick Kinsch to the best interests of the child. Such a change must be pleaded before the court which has jurisdiction in the Member State of origin, which should also hear any application to suspend enforcement of its judgment.

In tension with this holding of the ECJ, the ECtHR has held, in construing the p ­ ositive obligation deriving from Article 8 of the Convention to enforce return orders in conformity with the Brussels IIa Regulation, as follows: In the light of the principles above, according to which the best interests of the children must still be of primary consideration … the Court accepts that a change in the relevant circumstances may exceptionally justify the non-enforcement of a final return order. However, having regard to the State’s positive obligations under Article 8 and the general requirement of respect for the rule of law, the Court must be satisfied that the change in circumstances was not brought about by the State’s failure to take all measures that could reasonably be expected to facilitate the enforcement of the return order.28

Given that the same judgment of the Court says that the task to assess a change of circumstances ‘falls in the first instance to the national authorities of the requested state, which have, inter alia, the benefit of direct contact with the parties concerned’,29 the question is whether those same national authorities truly can rely on the construction of the Regulation given by the ECJ and, in the interests of mutual trust among Member States, abstain from exercising their own judgment on what is required by the interests of the child in view of a change of the relevant circumstances. This may be incompatible with their obligations under the ECHR.

ii.  Evolving Case Law on the Ways to Resolve the Potential Conflict between EU Law and the Law of the Convention The case of Povse v Alpago arose out of the decision of the Austrian mother (Doris Povse) of a child, Sofia Povse, to separate from the father (Mauro Alpago). She left Vittorio Veneto where the couple had lived with the child and returned to Austria, taking the child with her. Since the mother was not legally entitled to decide alone to change the child’s habitual residence, the situation amounted to a case of child abduction. The case was taken by the father to a court in Venice, which decided to issue a return order under Article 11(8) of the Brussels IIa Regulation. A court in Austria, requested to enforce this order, refused to do so because enforcing it would ‘create a grave risk of psychological damage to the child’. An intermediary appeal court in Austria reversed that decision, and Ms Povse appealed to the Austrian Supreme Court, which sent a preliminary ­reference to the ECJ. The ECJ confirmed the principle that it was for the court having made the return order – not for the court requested to enforce it in another Member State – to assess whether there had been a fundamental change to the circumstances such that enforcement of the order ‘might be seriously detrimental to the best interests of the child’.30 Therefore, the Austrian courts had to defer to the judgment of the



28 Sévère 29 See 30 See

v Austria (n 16) § 105. the quotation above (n 16). the quotation from Case C-211/10 PPU Doris Povse v Mauro Alpago (n 27).

Case Law of the European Court of Human Rights  379 courts of Italy. This decision is entirely in line with the ECJ’s view of mutual trust among Member States, which it considers to be an overarching principle, and the concern for individual rights tends to take second place (certainly at the time the Povse v Alpago case was decided). Ms Povse applied to the ECtHR, relying on the type of reasoning that had often been successfully invoked in Hague Convention cases. She failed; the Court rejected her application as ‘manifestly ill-founded’.31 The reason was that her case fell under the Bosphorus presumption,32 which the Court had created in 2005 in order to avoid interfering in the EU project by creating human rights obstacles to the smooth functioning of European unification. It basically presumes that the processes of the EU are equivalent, in terms of protection of human rights, to the provisions of the Convention, even where they do not literally comply with them in every procedural detail. It was held that the Bosphorus presumption could be applied to the Povse case. Had this been a non-EU case (falling under the Hague Convention), the Austrian courts would have been required to assess for themselves whether the protection of the applicants’ right to family life required taking account of changed circumstances when refusing to enforce the Italian return order. But this would have contravened the policy behind a regulation of the EU; and that changed everything: the CJEU made it clear that within the framework of the Brussels II[bis] Regulation it was for the Italian courts to protect the fundamental rights of the parties involved. Consequently, the applicants’ rights have to be asserted before the Italian courts. The Court is therefore not convinced by the applicants’ argument that to accept that the Austrian courts must enforce the return order of 23 November 2011 without any scrutiny as to its merits would deprive them of any protection of their Convention rights. On the contrary, it follows from the considerations set out above that it is open to the applicants to rely on their Convention rights before the Italian Courts … Should any action before the ­Italian courts fail, the applicants would ultimately be in a position to lodge an application with the Court against Italy (see, for instance Šneersone and Kampanella v Italy … concerning complaints under Article 8 of the Convention in respect of a return order issued by the Italian courts under the Brussels II[bis] Regulation). In sum, the Court cannot find any dysfunction in the control mechanisms for the observance of Convention rights. Consequently, the presumption that Austria, which did no more in the present case than fulfil its obligations as an EU Member State under the Brussels II[bis] ­Regulation, has complied with the Convention has not been rebutted.33

And the Court subsequently held, on an application brought against Austria by the father, that it was the father’s rights under Article 8 that had been violated (by ­excessive delay in enforcing the return order under the Brussels  IIa Regulation), not the m ­ other’s.34 The dual outcome of the Povse v Alpago case is, for the time being, the only holding of

31 This phrase is sometimes used very loosely in the Strasbourg jurisprudence; let us say that the Court considered the application to be ill-founded on the basis of its contemporaneous case law. 32 After the case of Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v Ireland App no 45036/98 (ECtHR, 30 June 2005). 33 Decision, Sofia Povse and Doris Povse v Austria App no 3890/11 (ECtHR, 18 June 2013) §§ 85–87. 34 Judgment, MA v Austria App no 4097/13 (ECtHR, 15 January 2015).

380  Patrick Kinsch the ECtHR on the specific issue of the potential conflict between Brussels IIa and the Convention. This holding is very reassuring from the EU point of view of the principle of mutual trust in the relationships between Member States of the Union. But this is not been the end of the matter. Other developments in case law throw doubt on the solidity of Povse’s simple solution for a difficult conflict. It was possibly the adamant attitude of the ECJ in Opinion 2/13,35 by which it refused to consider that the draft agreement for the accession of the EU to the ECHR – an agreement foreseen by the Lisbon Treaty36 – was compatible with the EU and FEU treaties, that caused the renewal of the frictions between states’ obligations under EU law and the European law of human rights. The ECJ saw a number of compelling (at least in its own view) reasons for its negative opinion; all but one were procedural reasons, and one was a substantive reason. The Convention, by obliging its Contracting States to exercise a second look when enforcing public acts (such as judgments) from other Member States and to verify whether the Convention had been complied with in the state of origin, was not compatible with the principle of mutual trust, which was a principle of ­constitutional significance in the EU: the principle of mutual trust between the Member States is of fundamental importance in EU law, given that it allows an area without internal borders to be created and maintained. That principle requires, particularly with regard to the area of freedom, security and justice, each of those States, save in exceptional circumstances, to consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law. In so far as the ECHR would, in requiring the EU and the Member States to be considered Contracting Parties not only in their relations with Contracting Parties which are not Member States of the EU but also in their relations with each other, including where such relations are governed by EU law, require a Member State to check that another Member State has observed fundamental rights, even though EU law imposes an obligation of mutual trust between those Member States, accession is liable to upset the underlying balance of the EU and undermine the autonomy of EU law.37

In the field of enforcement of public acts in another Member State, the Opinion thus sees as normal, and well worth preserving, the provisions of secondary EU legislation which eliminate a public policy review in the requested Member State, in particular by reference to the European Convention on Human Rights.38 Those provisions exist in EU family law (Articles 11(8), 40 and 42 of the Brussels IIa Regulation), in some aspects

35 Case Opinion 2/13 [2014] ECLI:EU:C:2014:2454. 36 Art 6(2) of the European Union Treaty, as amended by the Lisbon Treaty, provides that ‘the Union shall accede to the [ECHR]. Such accession shall not affect the Union’s competences as defined in the Treaties.’ 37 Paras 191 and 194. 38 Some of the regulations in civil and commercial matters remain true to tradition and provide for such a public policy review (see in particular, with relation to the Brussels I system, Case C-7/98 Dieter Krombach v André Bamberski [2000] ECR I-1935, ECLI:EU:C:2000:164, and other cases), but others do not. See also an extrajudicial speech by K Lenaerts, president of the ECJ, ‘The Principle of Mutual Recognition in the Area of Freedom, Security and Justice’ (4th annual Sir Jeremy Lever Lecture, Oxford, 30 January 2015), in particular at 28: ‘Since the EU is governed by the principle of democracy, it is for the EU political process to draw the line between unity and diversity. As a court that upholds the rule of law, the ECJ may only ascertain that, when drawing that line, the EU political institutions have complied with primary EU law, notably with the Charter’.

Case Law of the European Court of Human Rights  381 of judgment recognition in civil and commercial matters (the European Enforcement Order model), but also – and, in political terms, most importantly – in criminal matters (the European Arrest Warrant), and in matters of asylum through the Dublin Regulation. The Opinion allows for non-enforcement in ‘exceptional circumstances’, it is true; but that exception refers (in the light of the earlier case law to which reference is made in the Opinion) to ‘systemic’ failure to observe human rights in the Member State of origin.39 In other cases, the necessities – as perceived by the ECJ – of the principle of mutual trust, the EU equivalent of a constitutional ‘full faith and credit’ clause, prevail over individuals’ human rights. Opinion 2/13 was not well received in Strasbourg,40 nor could it have been well received. Through its insistence on the ‘autonomy of EU law’, it showed that EU law, as interpreted by the ECJ, rejected any kind of heteronomy, even a heteronomy based on the international law obligation to comply with the Convention as interpreted by the ECtHR. The ECtHR reacted to that attitude in the Grand Chamber judgment in Avotiņš v Latvia.41 Although it concerned the implementation in Latvia of the Brussels I Regulation – which does allow for a public policy review of judgments from other EU Member States, including a review as to compliance with the Convention42 – the Avotiņš case was used by the ECtHR to set limits, clearly intended to be of general application, to the compliance of Contracting States with the logic of ‘mutual trust’. The judgment starts out by the Court reaffirming the continued vitality of the Bosphorus presumption,43 and by declaring itself mindful of the importance of the mutual recognition mechanisms for the construction of the area of freedom, security and justice referred to in Article 67 of the TFEU, and of the mutual trust which they require … The Court has repeatedly asserted its commitment to international and European cooperation.44

But in reality, the Court had come to bury unconditional compliance with ‘mutual trust’, not to praise it: In the Bosphorus judgment the Court reiterated that the Convention is a ‘constitutional instrument of European public order’… Accordingly, the Court must satisfy itself, where the conditions for application of the presumption of equivalent protection are met … that the mutual recognition mechanisms do not leave any gap or particular situation which would render the protection of the human rights guaranteed by the Convention manifestly deficient.45

Thus, ‘manifest deficiency’ in the protection of human rights in the originating state is sufficient to cause a requested state to refuse to enforce a decision. The ‘manifest

39 See the asylum case in joined Cases C-411/10 and C-493/10 NS and Others [2011] ECR I-13905, ECLI:EU:C:2011:865, referred to in para 191 of Opinion 2/13. 40 See the opening address by D Spielmann, president of the ECtHR, on the occasion of the opening of the judicial year 2015 www.echr.coe.int 4–5. 41 Avotiņš v Latvia App no 17502/07 (ECtHR, 23 May 2016). 42 See fn 38. 43 § 115. 44 § 113. 45 § 116

382  Patrick Kinsch deficiency’ standard, contrary to the standard of systemic failure to observe human rights, includes manifest deficiencies in individual cases. This is clearly shown by the reference that the Court makes to one of its decisions in child abduction cases, X v Latvia, a case under the Hague Convention:46 In doing so it takes into account, in a spirit of complementarity, the manner in which these mechanisms operate and in particular the aim of effectiveness which they pursue. ­Nevertheless, it must verify that the principle of mutual recognition is not applied automatically and mechanically (see, mutatis mutandis, X v Latvia [GC], no. 27853/09, §§ 98 and 107, ECHR 2013) to the detriment of fundamental rights – which, the CJEU has also stressed, must be observed in this context.47

There follows a final appeal to civil disobedience by the courts of EU Members States where compliance with their obligations under EU would lead them to enforce ­decisions from other Member States, despite the presence of ‘manifest deficiencies’ of human rights protection in the procedure having led to the issuing of the decision: In this spirit, where the courts of a State which is both a Contracting Party to the Convention and a Member State of the European Union are called upon to apply a mutual recognition mechanism established by EU law, they must give full effect to that mechanism where the protection of Convention rights cannot be considered manifestly deficient. However, if a serious and substantiated complaint is raised before them to the effect that the protection of a Convention right has been manifestly deficient and that this situation cannot be remedied by European Union law, they cannot refrain from examining that complaint on the sole ground that they are applying EU law.48

There is no doubt that the fundamental holding of the Grand Chamber judgment in the Avotiņš case also applies in Brussels IIa Regulation cases. The terms of the judgment are too general to allow any kind of distinguishing. Indeed, the holding in Avotiņš was recently repeated, by way of a short obiter dictum, in a Brussels IIa case: [U]nder Article 11 § 8 of the Brussels II bis Regulation, the State in which the child had its habitual residence prior to the wrongful removal can override a decision refusing to order that child’s return, pursuant to Article 13 of the Hague Convention. If such a decision is accompanied by a certificate of enforceability, pursuant to Article 42 of the Regulation, the requested State has to enforce it. Under Article 47 of the Regulation, the law of the State of enforcement applies to any enforcement proceedings (see M.A. v. Austria, no. 4097/13, §§ 112 and 114, 15 January 2015). As the Court has previously held, it must verify that the principle of mutual recognition is not applied automatically and mechanically (see Avotiņš v. Latvia [GC], no. 17502/07, § 116, ECHR 2016).49

46 See n 14. 47 § 116. 48 ibid. 49 Royer v Hungary App no 9114/16 (ECtHR, 6 March 2018) § 50. The holding in Avotiņš has also been applied in the matter of a European Arrest Warrant, which functions according to the same logic as enforcement orders in child abduction cases: Pirozzi v Belgium App no 21055/11 (ECtHR, 17 April 2018). The ‘manifest deficiency’ standard appears in that case as well (§§ 63 and 64, repeating the holding in § 116 of Avotiņš, and § 71), sometimes under the guise of the ‘flagrant denial of justice’ standard, well known in matters of international judicial assistance in criminal matters: §§ 57 and 71.

Case Law of the European Court of Human Rights  383 Avotiņš should therefore be considered as partially overruling Povse v Austria in situations where the assessment of the child’s best interests, or the incidence of a change of circumstances, in the originating court was ‘manifestly deficient’ from a human rights viewpoint. In those cases the courts in the Member State of enforcement are supposed to refuse to comply with the Regulation. The question that remains – but it is a question for the ECJ – is whether it is desirable to continue to insist on strict compliance with those provisions of secondary EU law that purport absolutely to forbid the exercise of a ‘second look’ in the interest of protection of individual human rights. There are reasons to doubt it. First and foremost, if the ECJ does not moderate its reading of the obligations of Member States, a moment will come where a true conflict between the obligations of a state as a Member State and its obligations as a Contracting State to the ECHR will appear. Then, the courts of that state – not the ECJ, nor the ECtHR – must take a final decision on the international, or supranational, obligations with which it will comply, and those that will be sacrificed. That is a paradoxical, indeed a disorderly, result, but one that will become inevitable. It would be preferable if it could be avoided. Second, no one is presently asking the ECJ to abandon the idea of mutual trust as such. The ECtHR is prepared to adopt a compromise solution, as announced in Avotiņš, and to allow states to comply with the logic of EU secondary law as long as compliance with that logic does not require them to tolerate ‘manifest deficiencies’ in the protection of human rights. Could this be a compromise solution for the ECJ as well, which could take the exception relating to ‘systemic’ failure to protect human rights a step further and individualise the exception? There have already been cases in the ECJ, on criminal law and on asylum law, which have accepted that states may take a ‘second look’ if the failure to do so might cause an individual to be subjected, in another Member State, to a violation of his or her right not to be subjected to inhuman or degrading treatment.50 Once that has been accepted, it would not appear excessive to expect the ECJ to accept a further exception for cases where the protection of other human rights has been ‘manifestly deficient’.51 Whether the ECJ will agree to do so remains to be seen – perhaps in a future case relating to international child abduction between Member States of the EU.

50 See joined Cases C-404/15 and C-659/15 PPU Aranyosi and Căldăraru [2016] ECLI:EU:C:2016:198, paras 85 and 86 and Case C-578/16 PPU CK and Others v Republika Slovenija [2017] ECLI:EU:C:2017:127, para 75. Of course, given the ECJ’s insistence on the ‘autonomy of EU law’, a violation of the right not to be subjected to inhuman or degrading treatment is no longer primarily treated, in judgments of the ECJ, as ­falling under Art 3 of the ECHR; it will be seen as a case under Art 4 of the EU Charter of Fundamental Rights. This is significant in terms of appearances, but probably not in terms of substance. 51 In another extrajudicial contribution, K Lenaerts considers it possible that the EU may have to consider extending the exceptions to mutual trust in case of violations of fundamental rights other than the right not to be subjected to inhuman or degrading treatment: ‘La vie après l’avis: Exploring the Principle of Mutual (Yet Not Blind) Trust’ (2017) 54 CML Rev 805 at 835. And see D Spielmann and P Voyatzis, ‘L’étendue du contrôle du respect des droits fondamentaux à l’aune de l’expérience judiciaire comparée’ [2017] RTDH 897 at 921.

384

27 Relationship between the 2007 Hague Maintenance Protocol and the Prior Hague Maintenance Conventions LAURA CARBALLO PIÑEIRO

I. Introduction The 2007 Hague Maintenance Protocol, along with the 2007 Hague Child Support Convention, has been approved and aims to modernise an otherwise rich field of international provisions. Just focusing on the instruments produced by the Hague Conference on Private International Law and only on those dealing with conflicts of laws, the 2007 Hague Maintenance Protocol has been preceded by the 1956 Hague Maintenance Convention and the 1973 Hague Maintenance Convention. However, the aim ‘to ensure the effective international recovery of child support and other forms of family maintenance’,1 taking advantage of the latest developments in inter-country cooperation and the modern means of communication, has been taken as an opportunity to revisit the conflict-of-laws system in these matters by some countries.2 Against this backdrop, the risk of treaty collision is high and affects an important number of EU Member States. The 2007 Hague Maintenance Protocol applies in all Member States because of Article 15 of the Maintenance Regulation.3 Moreover, both prior Hague Maintenance Conventions are in force in 10 EU Member States; the 1956 Convention is also applicable in Austria; and the 1973 Hague Maintenance Convention is applicable in Poland.4 None of these countries have denounced the prior conventions 1 See Art 1 of the 2007 Hague Maintenance Convention. 2 According to PR Beaumont, ‘Reflections on the Relevance of Public International Law to Private ­International Law Treaty Making’ (2010) 340 Recueil des Cours 43, the 2007 Hague Maintenance Protocol was negotiated by China, the EU, Japan and Switzerland while other countries, in particular the United States and Canada, showed no interest in its ratification and thus in the final outcome. 3 Denmark has accepted the application of the Maintenance Regulation by Council Decision 2006/325/ EC of 27 April 2006 concerning the conclusion of the Agreement between the European Community and the Kingdom of Denmark on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2006] OJ L120/22. 4 The 1956 Hague Maintenance Convention is still in force in Austria, Belgium, France, Germany, Greece, Italy, Luxembourg, the Netherlands, Portugal and Spain, while that of 1973 is in Belgium, France, Germany, Greece, Italy, Luxembourg, the Netherlands, Poland, Portugal and Spain.

386  Laura Carballo Piñeiro because the 2007 Hague Maintenance Protocol does not require d ­ enunciation and establishes that it is the international instrument to apply as regards to other EU Member States.5 However, and absent denunciation of the prior Hague Maintenance Conventions, a conflict of treaties arises as to those third states which have not ratified the 2007 Hague Maintenance Protocol yet, but are party to either the 1956 or 1973 Hague Maintenance Convention, or both. In order to address this issue, the chapter will first tackle the solutions provided by the 2007 Hague Maintenance Protocol and its compatibility clauses. Second, this chapter will fill the gaps by looking at other instruments beyond the 2007 Hague Maintenance Protocol, in particular the Vienna Convention on the Law of Treaties.6 Article 30(2) thereof gives priority to compatibility clauses,7 but it also establishes that the problems not solved by the latter need to find a solution in other principles of this convention. Regrettably, not all issues can be solved according to these principles. Thus, this chapter will move to tackle the relationship between the 2007 Hague Maintenance Protocol and each of the Hague Maintenance Conventions as they do not have the same territorial scope of application. Be that as it may, it is acknowledged from the beginning that the relevance of this issue in practice is very limited as courts rightly opt for applying the 2007 Hague Maintenance Protocol and dismiss the prior conventions. The question to be answered is whether this is the best practice in the field. A brief examination of the technical solutions provided by these conventions in comparison to the 2007 Hague Maintenance Protocol is reasonable. This examination may lead us to the conclusion that the conflict of treaties is apparent.8 The chapter will close with a summary of conclusions.

II.  Compatibility Clauses in the 2007 Hague Maintenance Protocol The Maintenance Regulation does not provide for specific compatibility clauses about conflict-of-laws conventions. The issue is, nevertheless, indirectly addressed by the referral to the 2007 Hague Maintenance Protocol made in Article 15. Hence, conflicts between instruments on maintenance matters are to be tackled in the framework of this latter instrument. In fact, Article 18 thereof specifically deals with

5 See A Bonomi, Explanatory Report to the Protocol of 23 November 2007 on the Law Applicable to ­Maintenance Obligations; text adopted by the Twenty-First Session, Hague Conference on Private International Law para 197–99. 6 International Convention on the Law of Treaties concluded in Vienna on 23 May 1969, 1155 UNTS 331. 7 See more about this terminology and an enumeration of different variants of compatibility clauses in MB Noodt Taquela, ‘Applying the Most Favourable Treaty or Domestic Rules to Facilitate Private International Law Co-Operation’ (2016) 377 Recueil des Cours 208 ff. See also S Álvarez González, ‘Claúsulas de compatibilidad en los Convenios de la Conferencia de La Haya de Derecho Internacional Privado’ (1993) 45 REDI 39. 8 See making the distinction between real and apparent conflicts from the studies on the conflict of laws, D Bureau, ‘Les conflits de conventions’ in Travaux du Comité Français de Droit International Privé 1998–2000 (Paris, Pedone, 2001) 201, 205.

Relationship between the 2007 Protocol and Prior Conventions  387 this instrument’s coordination with the prior Hague Maintenance Conventions. This provision resembles Article 18 of the Hague 1973 Maintenance Convention and reads as follows: As between the Contracting States, this Protocol replaces the Hague Convention of 2 ­October 1973 on the Law Applicable to Maintenance Obligations and the Hague Convention of 24 October 1956 on the law applicable to maintenance obligations towards children.

An initial reading of this compatibility clause points to the replacement of the prior Hague Maintenance Conventions by the 2007 Hague Maintenance Protocol once the latter is ratified by the concerned Contracting State. A second reading reveals its ­weaknesses to the extent that it is construed on the basis of reciprocity because it states: ‘as between the Contracting States’. However, this is not the basis of the 2007 Hague Maintenance Protocol’s operation. The latter’s provisions apply ‘even if the applicable law is that of a non-Contracting State’.9 In other words, the 2007 Hague Maintenance Protocol has universal application and it is not only applicable ‘as between the Contracting States’. Moreover, the 1973 Hague Maintenance Convention lays down a similar rule to this one,10 that of the 1956 Hague Maintenance Convention being less problematic because it only applies when the governing law is that of a Contracting State.11 Hence, the compatibility clause only solves the conflict of treaties when both states are party to the 2007 Hague Maintenance Protocol; but it does not address the problem of the applicable instrument as regards a non-Contracting State in which the former conventions remain in force. Within the EU, the problem is limited to those EU Member States which are also Contracting States to either the 1956 or 1973 Hague Maintenance Conventions, and in relation to third states which are not a party to the 2007 Hague Maintenance Protocol, but are bound by one of the prior conventions. For the time being, the countries affected are Albania,12 Japan,13 Switzerland14 and Turkey.15 Should one of these countries ratify the 2007 Hague Maintenance Protocol, the problem would be then solved by the here discussed Article 18. Meanwhile, there is an unaddressed conflict of treaties.16 For the sake of completeness, it should be mentioned that the problem does not affect those countries which are neither party to the 2007 Hague Maintenance Protocol nor the above-mentioned conventions; EU Member States will apply the 2007 Hague Maintenance Protocol on grounds of the instrument’s universal scope of application.

9 See Art 2 of the 2007 Hague Maintenance Protocol. 10 See Art 3 of the 1973 Hague Maintenance Convention. 11 See Art 6 of the 1956 Hague Maintenance Convention. 12 Albania is a party to the 1973 Hague Maintenance Convention since 1 December 2011. 13 Japan is a party to both conventions, since 19 September 1977 for the 1956 Hague Maintenance Convention and since 1 September 1986 for the 1973 Hague Maintenance Convention. 14 Switzerland is a party to both conventions, since 17 January 1965 for the 1956 Hague Maintenance Convention and since 1 October 1977 for the 1973 Hague Maintenance Convention. 15 Turkey is a party to both conventions, since 24 April 1972 for the 1956 Hague Maintenance Convention and since 1 November 1983 for the 1973 Hague Maintenance Convention. 16 Already advancing that the time of the conflict of laws has been followed by the conflict of treaties, see F Majoros, Les conventions internationales en matière de droit privé: abrégé théorique et traité pratique (Paris, Pedone, 1976).

388  Laura Carballo Piñeiro The compatibility clause enshrined in Article 18 of the 2007 Hague Maintenance Protocol is essential in providing legal certainty as to its application while sending the clear message that states should join the most modern treaty. However, it does not solve all the issues that the application of the concurrent maintenance instruments causes. Taking this into account, other compatibility clauses of the 2007 Hague Maintenance Protocol could operate, in particular Article 19. The latter focuses, though, on the ‘co-ordination with other instruments’, ie, referring to instruments other than the Hague Maintenance Conventions expressly dealt with in Article 18.17 Moreover, Article 19 could be labelled as a neutral compatibility clause because it only seeks to establish mere compatibility between instruments18 and fails to provide for the principle of maximum effectiveness.19 This lack of material orientation is relevant to our research because it cannot be used as a cannon of interpretation for those cases not directly tackled by Article 18.While there have been some interpretations indicating that the principle of most favourable instrument should apply in these cases, the terms of this clause do not support such an application, but it would depend on the terms of the other instrument.20 Both compatibility clauses were introduced following the advice contained in a preliminary study on the coordination between the Maintenance Project and other international instruments.21 The point to be made now is that this study analyses not only the conventions on applicable law to maintenance obligations, but the whole project, ie, first and foremost taking into account the approved 2007 Hague Child Support Convention. While this convention is based on the principle of cooperation, and compatibility clauses such as those under analysis seem appropriate for this type of provision, the same does not apply to conflict-of-laws conventions, particularly when they have a universal scope of application.22 The latter was not considered when drafting these clauses, but achieving coordination between conventions.23 In view of these developments, an intermediate conclusion can be reached. The provisions contained in the 2007 Hague Maintenance Protocol do not provide an ­expedient answer to the issue of which conflict-of-laws convention applies when the

17 Art 19 of the 2007 Hague Maintenance Protocol reads as follows: ‘(1) This Protocol does not affect any other international instrument to which Contracting States are or become Parties and which contains provisions on matters governed by the Protocol, unless a contrary declaration is made by the States Parties to such instrument. (2) Paragraph 1 also applies to uniform laws based on special ties of a regional or other nature between the States concerned’. 18 See Bonomi Report (n 5) para 200. 19 This principle has been developed by Majoros (n 16) I 253. See also Noodt Taquela (n 7) 218–27. 20 If the other instrument does not contain a more assertive compatibility clause, the conflict between conventions is not solved; this is when a principle like that of applying the most favourable treaty could be useful as defended by Noodt Taquela (n 7) 223–27. However, her argument is restricted to international judicial cooperation treaties, and it does not seem suitable for conflict-of-laws treaties on account of the underlying principles. 21 See P Lortie, Co-Ordination Between the Maintenance Project and Other International Instruments, Hague Conference on Private International Law, Prel.Doc. No 18, June 2006. 22 Already highlighting this difficulty see GAL Droz, ‘Regards sur le droit international privé comparé. Cours general de droit international privé’ (1991) 229 Recueil des Cours 9, 390–94: ‘Unification universelle sur unification universelle ne vaut’. 23 See Lortie (n 21) 13–14.

Relationship between the 2007 Protocol and Prior Conventions  389 other state involved in the case has not ratified the 2007 Hague Maintenance Protocol and both states are bound by a prior Hague Maintenance Convention. Article 18 of the 2007 Hague Maintenance Protocol provides for those cases in which states are parties to more than one Hague Maintenance instrument and gives preference to the 2007 Hague Maintenance Protocol. While the principle behind this rule is lex posterior derogat priori, the same applies to the relations between a state bound by more than one Hague Maintenance instrument and a state which is not a party to any of them.24 Following these considerations, if both states are bound by the same Hague Maintenance Convention and one of them has not ratified the 2007 Hague Maintenance Protocol, the pacta sunt servanda principle points to the application of the treaty to which both states are members. However, the universal scope of the 2007 Hague Maintenance Protocol is in contradiction with this conclusion, thereby it is advisable to seek further guidance.

III.  Solutions to the Conflict of Conventions Beyond the Compatibility Clause If the answer to the conflict of treaties under discussion must be sought beyond this instrument, then resorting to Article 30 of the Vienna Convention on the Law of Treaties of 1969 dealing with successive treaties on the same subject matter is the next step,25 as the Vienna Convention’s provisions operate on a subsidiary basis.26 In this vein, it has already been asserted that this convention not only applies to public international law treaties, but also to those of private international law.27 It is also worth noting that the value of the Vienna Convention’s provisions in applying the Hague Conventions is compromised by the fact that some states party to the Hague Conference of Private International Law have not ratified it,28 as is remarkably for our purposes the case of France and Turkey. A further problem arises out of the lack of focus of the Vienna Convention on Private International Law conventions at the time of its discussion, ie, it may not pay attention to their private dimension. Be that as it may, Article 30(3) of the Vienna Convention leads to the same result as Article 18 of the 2007 Hague Maintenance Protocol. That provision lays down that the

24 ibid 16. The same outcome would be reached by applying international customary law as pointed out by Lortie. 25 The issue of whether conventions have the same subject matter has been discussed at length, but it is going to be left out of this chapter as there is no doubt that the three instruments at stake do have the same subject matter, maintenance obligations, although their personal scope may vary. On this interpretation issue, see ibid 15. 26 See for all ibid 15; Noodt Taquela (n 7) 251–52. 27 FA Mann, ‘Uniform Statutes in English Law’ (1983) 99 LQR 376. 28 Nevertheless, there is also the opinion that the Vienna Convention codifies what is international customary law. See on this debate the references provided by Lortie (n 21) 15. The same author specifies that it may not be a codification of the practice of international organisations regarding the development of conventions since Art 5 of the Vienna Convention provides that ‘[it] applies to any treaty which is the constituent instrument of an international organisation and to any treaty adopted within an international organisation without prejudice to any relevant rules of the organisation’.

390  Laura Carballo Piñeiro later treaty is to be applied if both states are party to it; thereby the prior treaty is the one to be applied if both states have ratified it.29 This conclusion seems to be confirmed by Article 30(4)(b) of the Vienna Convention,30 which reads as follows: 4. When the parties to the later treaty do not include all the parties to the earlier one: (…) (b) as between a State party to both treaties and a State party to only one of the treaties, the treaty to which both States are parties governs their mutual rights and obligations.

The German Bundesgerichtshof decided a case in 1986 involving the 1956 Hague Maintenance Convention and a bilateral treaty between Germany and Iran signed in 1929 on the grounds of this rule.31 Accordingly, the bilateral treaty was applied in that case because it was in force between both states; the Hague Convention was not applied because it had not been ratified by Iran.32 However, as with Article 18 of the 2007 Hague Maintenance Protocol, it is highly debatable whether this rule works beyond treaties without a territorial connection (such as with our case study case)33 particularly because of their origins.34 The 2007 Hague Maintenance Protocol’s scope of application is universal, ie, it is applied regardless if the applicable law is from a Contracting State. Against this background, it might be advisable to resort to Article 31 of the Vienna Convention to fill the gap in Article 18 of the 2007 Hague Maintenance Protocol by taking into consideration ‘the terms of the treaty in their context and in the light of its object and purpose’.35 Accordingly, it is convenient to take a closer look at the relationship between these international instruments.

IV.  The 1956 Hague Maintenance Convention The 1956 Hague Maintenance Convention does not have a universal scope of application as it is only applicable if the chosen law is that of a Contracting State.36 The problem will thus arise when the selected law is that of Japan, Switzerland or Turkey,37 since these countries have ratified this convention, but not the 2007 Hague Maintenance Protocol. The conflict arises for those countries that are also a party to the latter since the 2007 Hague Maintenance Protocol’s scope is universal, ie, it is applicable even if the chosen law is that of Japan, Switzerland and Turkey.

29 See on this application of the speciality principle ratione loci, Bureau (n 8) 213. 30 See on these provisions, Q Wright, ‘Conflicts Between International Law and Treaties’ (1917) ASIL 566, 576–9. On their history, see M Koskenniemi, ‘Fragmentation of International Law’ (2006) International Law Commission. 31 Bundesgerichtshof, 15 January 1986, IPRspr, no. 85, 198. 32 The reasoning of the German Supreme Court does not lack controversy to the extent that the Hague Convention has a territorial scope of application. Thus, it was not applicable in this case and there was no conflict between treaties as pointed out by Noodt Taquela (n 7) 251. 33 See for all Bureau (n 8) 213–14; Noodt Taquela (n 7) 256–257. 34 See Wright (n 30) 576. 35 On the principle of systemic interpretation, ie, considering the environment of the treaty, see Koskenniemi (n 30) 208–09. 36 See Art 6 of the 1956 Hague Maintenance Convention. 37 See the Introduction to this chapter.

Relationship between the 2007 Protocol and Prior Conventions  391 Having said this, it is interesting to note that these three countries are also part of the 1973 Hague Maintenance Convention. While this convention lays down a very similar compatibility clause to that enshrined in Article 18 of the 2007 Hague Maintenance Protocol, the application of the 1956 Hague Maintenance Convention in these countries should be ruled out by the principle of lex posterior derogat priori. Hence, the conflict between treaties could be restricted to one between the 1973 Hague Maintenance Convention and the 2007 Hague Maintenance Protocol, as the former would supersede the 1956 Convention in those countries that have joined both. Nevertheless, Austria is a case in point because this country is an EU Member State and thus applies the 2007 Hague Maintenance Protocol by way of Article 15 of the Maintenance Regulation, but it is also a Contracting State to the 1956 Convention. Should the Japanese, Swiss or Turkish law be applicable to a maintenance obligation, Austrian courts would be faced with the choice between the 1956 Convention and the 2007 Hague Maintenance Protocol. In dealing with these residual cases, the Explanatory Report to the 2007 Hague Maintenance Protocol suggests the application of this instrument because of the objective of Article 18: the 2007 Hague Maintenance Protocol should supersede former conventions.38 While this general aim may serve as a guideline in solving the conflict of treaties, a literal interpretation of Article 18 does not support this conclusion. Thus, it would be convenient to find further arguments in this direction. To this end, the principle of maximum effectiveness may be of help.39 The general objectives of the Maintenance Project are to modernise this field of law by providing more effective and efficient tools to maintenance creditors.40 In this vein, it is no secret that it aims at reviewing the prior Maintenance Conventions, including those on conflict of laws. However, the 2007 Hague Maintenance Protocol does not depart from the general connecting factor, established for the first time by the 1956 Hague Maintenance Convention: the law of the habitual residence.41 Other innovations, nevertheless, may support the conclusion that the 2007 Hague Maintenance Protocol matches the general objectives of both instruments in better ways than the convention, confirming that the 2007 Hague Maintenance Protocol should be applied instead of the 1956 Hague Maintenance Convention.42

V.  The 1973 Hague Maintenance Convention The conflict between the 1973 Hague Maintenance Convention and the 2007 Hague Maintenance Protocol is more difficult to solve because both instruments claim

38 See Bonomi Report (n 5) para 198. See insisting on this point, A Bonomi, ‘The Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligation’ (2008) 10 YBPrIL 333, 334–36. 39 See developing this way to solve conflicts between private international law treaties, Bureau (n 8) 215–18. 40 See P Lortie, ‘The development of medium and technology neutral international treaties in support of post-convention information technology systems. The example of the 2007 Hague Convention and Protocol’ (2008) 10 YBPrIL 359. 41 See on the benefits of this criterion in this field, Bonomi (n 38) 341–42. 42 These innovations are examined in the following section.

392  Laura Carballo Piñeiro universal scope of application.43 As said before, if Article 30 of the Vienna Convention addressed this issue, the 1973 Hague Maintenance Convention would take priority over the 2007 Hague Maintenance Protocol because both states are a party to it. That would be the case of the 10 above-mentioned EU Member States and Albania, Japan, Switzerland and Turkey. The question to be discussed now is whether the principle of maximum effectiveness would apply the 2007 Hague Maintenance Protocol instead of the 1973 Hague Maintenance Convention. The reading of the discussions at the (pre-)Diplomatic Conference leading to the approval of the 2007 Hague Maintenance Protocol shows that the 1973 Hague Maintenance Convention was considered to be well-performing in terms of the provided solutions. However, this convention was in need of modernisation, in particular regarding the law applicable to maintenance obligations between spouses and ex-spouses. The need to replace it motivated the drafting of the 2007 Hague Maintenance Protocol which encompasses all family relationships as the 1973 Hague Maintenance Convention does, the main difference being the lack of reservations in the 2007 Hague Maintenance Protocol.44 The structure of the 2007 Hague Maintenance Protocol is similar to that of the 1973 Hague Maintenance Convention. Both establish as a general connecting factor the maintenance creditor’s habitual residence,45 design a number of subsidiary factors in a ‘cascade’ with the aim of favouring maintenance creditors,46 lay down a special rule for facilitating public bodies’ recovery of maintenance,47 contain the exception of public policy,48 and address the issues included in the law applicable to maintenance obligations.49 However, the 2007 Hague Maintenance Protocol substantially differs from the 1973 Hague Maintenance Convention in a number of approaches developed to favour maintenance creditors. The role of the law of the forum in the 2007 Hague Maintenance Protocol is the first approach to be highlighted. While the law of the maintenance creditor’s habitual residence is the general connecting factor, the law of the seised court is the first residual factor after that one in the case of a specific type of maintenance creditor,50 and takes

43 See Art 3 of the 1973 Hague Maintenance Convention and Art 2 of the 2007 Hague Maintenance Protocol. 44 The phrasing of Art 1 of the 2007 Hague Maintenance Protocol resembles that of Art 1 of the 1973 Hague Maintenance Convention, showing the close relationship between both instruments, ie the latter was used as a model to draft the 2007 Hague Maintenance Protocol. However, unlike the convention, the 2007 Hague Maintenance Protocol does not allow for reservations. 45 See Art 3 of the 2007 Hague Maintenance Protocol and Art 4 of the 1973 Hague Maintenance Convention. 46 See Art 4 of the 2007 Hague Maintenance Protocol and Arts 4 to 6 of the 1973 Hague Maintenance Convention. 47 See Art 10 of the 2007 Hague Maintenance Protocol and Art 9 of the 1973 Hague Maintenance Convention. 48 See Art 13 of the 2007 Hague Maintenance Protocol and Art 11 of the 1973 Hague Maintenance Convention. 49 See Art 11 of the 2007 Hague Maintenance Protocol and Art 10 of the 1973 Hague Maintenance Convention. 50 According to Art 4(1) of the 2007 Hague Maintenance Protocol, beneficiaries of this materially oriented rule are children and their parents regardless of their age, and persons under the age of 21 years old except for maintenance obligations between spouses and ex-spouses. The latter is submitted to the general rule and the escape clause laid down in Art 5. Remarkably, Art 4 does not exclude the defence endorsed by Art 6 according to which a debtor may prove that they are not obliged under the law of their common nationality and the law of the debtor’s habitual residence. See, Bonomi (n 38) 343.

Relationship between the 2007 Protocol and Prior Conventions  393 priority over the parties’ common nationality.51 Moreover, it becomes the first connecting factor if the claim is brought by the creditor before the courts of the maintenance debtor’s habitual residence.52 This innovative rule seeks to promote the coincidence between the law and the forum and avoids time and costs associated with proving foreign law.53 Such savings favour maintenance creditors, but also provide them with a choice of laws whereby their obligation may be approved and may be enhanced.54 The 1973 Hague Maintenance Convention also refers to the lex fori, but it is a very last resort, namely after the law of the habitual residence and that of common nationality.55 This is not the only difference between the two instruments as their scope of application also differs. The conflict rule in ‘cascade’ provided by the 1973 Hague Maintenance Convention has a general scope and it is thus applied to all creditors, while that of the 2007 Hague Maintenance Protocol applies to a very specific category of them.56 This last restriction could be considered a weakness of the 2007 Hague Maintenance Protocol in the protection of maintenance creditors. However, as has been contended,57 the premise of the cascade applicable to all creditors is not entirely true as spouses and ex-spouses were excluded from it.58 This means that some categories of adult creditors are left out of the protection provided by the cascading connecting factors in the 2007 Hague Maintenance Protocol. Nevertheless, the right to maintenance for these creditors is debatable from a comparative law approach because many countries do not acknowledge obligations based on collateral parentage or affinity relationships. Seen in this light, the difference between both instruments loses its relevance. The 2007 Hague Maintenance Protocol was largely created to revise the law applicable to obligations between spouses and ex-spouses. The 1973 Hague Maintenance Convention establishes a rigid conflict rule that submits the obligation to the law applicable to divorce, legal separation or nullity of marriage.59 In contrast, the 2007 Hague Maintenance Protocol relies on the general rule, which is that the governing law of the country of the creditor’s habitual residence applies, but has an escape clause for these specific cases.60 Moreover, it suggests that the closest law to maintenance

51 See Art 4(2) of the 2007 Hague Maintenance Protocol. 52 See Art 4(3) of the 2007 Hague Maintenance Protocol. This provision is a compromise between those countries that favour the automatic application of the law of the forum, and those that prefer the law of the creditor’s habitual residence. See WGAL report of June 2006, Prel.Doc. No 22, paras 24 and 25; Bonomi (n 38) 345. 53 In addition to this, it has been mentioned that the common nationality criterion is discriminatory, and its role should be reduced. See Bonomi (n 38) 343–44. 54 The benefits of this indirect choice are restricted to only specific creditors because the Diplomatic Conference understood that they were the only ones that deserved it. See Bonomi (n 38) 346. 55 See Art 6 of the 1973 Hague Maintenance Convention. 56 See above n 54. 57 See Bonomi (n 38) 344. 58 See Art 8 of the 1973 Hague Maintenance Convention submitting these obligations to the law applicable to separation, nullity or divorce. 59 The main criticism is that this conflict rule favours forum shopping because the law applicable to these relationships is not unified. Moreover, the claim may arise after the dissolution of marriage proceedings, at a time when the law applied to divorce, legal separation or nullity is distant from the couple’s current situation. See on these issues and others Bonomi (n 38) 347–48. 60 The grounds for this escape clause are that the general rule is not always suitable for this type of obligation in view of the differences among legal systems. See Bonomi (n 38) 346.

394  Laura Carballo Piñeiro obligations between spouses and ex-spouses may be that of the last common habitual residence.61 The third innovative approach of the 2007 Hague Maintenance Protocol consists of securing some party autonomy in selecting the applicable law. On the one hand, creditor and debtor may conclude a procedural agreement whereby the law of the forum is to govern any maintenance obligation claimed in a specific proceeding.62 On the other hand, the parties to the maintenance obligation are entitled to conclude, at any time, an agreement on the applicable law, if they can defend their interests, subject to certain limitations and conditions.63 Considering these innovations, the 2007 Hague Maintenance Protocol is not indifferent on how to solve the conflict between instruments dealt with in this chapter to the extent that applying one or the other may provide a different outcome. The question is thus whether countries party to both may choose one or the other, depending on which one better secures the interests at stake, particularly the interests of the maintenance creditor.64 However, this ‘choice of treaties’ does not seem to be favoured by international law in the absence of a compatibility clause in these terms. While the lack of such a clause in the 2007 Hague Maintenance Protocol has already been highlighted,65 Article 19 of the 1973 Hague Maintenance Convention reads as follows: ‘[t]his Convention shall not affect any other international instrument containing provisions on matters governed by this Convention to which a Contracting State is, or becomes, a Party’. This compatibility clause seeks coordination, but not for applying the instrument that best favours a given objective, and thus is not a clause enshrining the principle of maximum effectiveness. It seems, though, to prefer the 2007 Hague Maintenance Protocol over the 1973 Hague Maintenance Convention, and this outcome is reinforced by the basis of Article 18 of the 2007 Hague Maintenance Protocol, ie, replacing the prior Hague Maintenance Conventions.66

61 See Art 5 of the 2007 Hague Maintenance Protocol. Particularly remarkable is that this clause only operates upon the request of one of the parties to the obligation, restricting its legal uncertainty. The seised court will nevertheless have to assess whether there is a closer law to the case than that of the maintenance creditor’s habitual residence. The court will weigh factors such as the one mentioned in the text, but also others such as the common nationality or respective nationalities, and the place of the marriage’s celebration or dissolution. 62 See Art 7 of the 2007 Hague Maintenance Protocol. The validity of this procedural agreement is submitted to the law of the forum and its effects restricted to the relevant proceedings. 63 See Art 8 of the 2007 Hague Maintenance Protocol. Choosing the law applicable to these obligations has the advantage of increasing legal certainty and avoiding forum shopping, particularly with relations between (future) spouses and ex-spouses. Once this was accepted, the Diplomatic Conference found it reasonable to extend this benefit to other adults, except for those considered ‘vulnerable’. Their definition is taken from the 2000 Hague Convention on the International Protection of Adults. See Bonomi (n 38) 353–54. Further protections come from the fact that only a few laws can be chosen to govern the maintenance obligation, and only the law of the creditor’s habitual residence can determine whether he or she can renounce the maintenance obligation. 64 This question is different from whether a depeçage of conventions is admissible; it has already been concluded that it is not. See for all Bureau (n 8) 216. 65 See section II of this chapter. 66 See Bonomi Report (n 5) para 199.

Relationship between the 2007 Protocol and Prior Conventions  395

VI. Summary The 2007 Hague Maintenance Protocol has been born into the framework of the Maintenance Project, with the aim of modernising these matters and thus the prior 1956 and 1973 Hague Maintenance Conventions. In other words, the underlying objective is to replace both conventions. However, Article 18 of the 2007 Hague Maintenance Protocol only requires this replacement between Contracting States to this instrument; it does not consider the case in which a state is already a party to one of the conventions and has not ratified the 2007 Hague Maintenance Protocol yet. In view of the 2007 Hague Maintenance Protocol’s universal scope of application, Articles 30 et seq of the Vienna Convention do not provide for a satisfactory solution to this conflict of treaties. It may come by way of the general objectives underlying all these instruments, ie, by the operation of the principle of maximum effectiveness. While the analysed conflict of treaties is not entirely apparent because the instruments may point to different outcomes in a few cases, the collision should still be solved in favour of the treaty that better responds to the underlying interests in maintenance matters. The application of this guiding principle is not entirely clear, but it can play a role, at least for the 1956 Hague Maintenance Convention. As for the 1973 Hague Maintenance Convention, the prevalence of the 2007 Hague Maintenance Protocol can be asserted on the basis of the compatibility clause included in the convention seeking coordination with future instruments.

396

part ix The Cooperation between Central Authorities

398

28 The Cooperation between Central Authorities under the Brussels IIa Regulation ANDREA SCHULZ1

I. Introduction In matters of parental responsibility, Central Authorities are at the heart of cross-border cooperation under the Brussels IIa Regulation. They assist parents and other persons having or seeking parental responsibilities, including rights of custody and rights of access. They also facilitate cross-border cooperation between courts and competent authorities in applying the Regulation. This contribution will examine their legal bases, the set-up of Central Authorities at present, the problems encountered by them in their daily work, as well as current and possible future tools for resolving those problems. To the extent possible, the Brussels IIter Proposal and the negotiations for a recast of the Regulation will also be taken into account up to October 2018.

II. Analysis A.  Establishment and Designation of a Central Authority Article 53 of the Brussels IIa Regulation obliges Member States to designate one or more Central Authorities to assist with the application of the Regulation. The Regulation was indeed the first Union law instrument requiring the establishment of Central Authorities in the area of family law. Its predecessors, the Brussels II Convention and 1 This document reflects the views of the author. It may not in any circumstances be regarded as reflecting the official position of the European Commission or the Federal Ministry of Justice and Consumer Protection of Germany. This Chapter was finalised in October 2018 and took account of the negotiations on the Brussels IIa recast up to that time. Meanwhile, the recast has been adopted (Regulation (EU) 2019/1111, OJ 2019, L 178/1); it will become applicable as of 1 August 2022. The cooperation chapter has become much more detailed and specific, which is hoped to assist Central Authorities and child protection authorities in its application.

400  Andrea Schulz the Brussels II Regulation, did not yet provide for Central Authorities. This was due to the fact that these two earlier instruments mainly focused on matrimonial matters, establishing uniform rules on jurisdiction and recognition for divorce, legal separation and the annulment of a marriage. Like under the Brussels I Convention and its successors, litigation would be between two adults on equal footing, and thus there would be no need for Central Authorities to provide assistance. Central Authorities to assist parents and other interested parties in cross-border proceedings in matters of parental responsibility and international child abduction had first been created in 1980 by the Hague Child Abduction Convention and the European Custody Convention,2 and had become an important tool in cross-border procedures concerning children. The Brussels II Convention and Regulation went slightly beyond mere matrimonial matters in that they contained ancillary jurisdiction rules in matters of parental responsibility concerning common children of both spouses when decisions were to be taken on the occasion of a divorce or separation. This also required rules on cross-border enforcement (or rather enforceability) while in matrimonial matters, mere recognition was sufficient. However, even this first ‘intrusion’ into matters of parental responsibility did not yet prompt the EU legislator to see a need for Central Authorities under Brussels II. It was only when the Brussels II Regulation was replaced by the Brussels IIa Regulation in 2003 that Central Authorities were first established. This decision was linked to the fate of the 1996 Hague Convention on the Protection of Children in the EU Member States. That Convention had been negotiated under the auspices of the Hague Conference on Private International Law in parallel with the negotiations concerning the Brussels II Convention among the EU (then EC) Member States. The 1996 Hague Convention on the Protection of Children was meant to replace the 1961 Hague Convention on the Protection of Infants for all matters of parental responsibility, covering the areas of jurisdiction, applicable law, and the recognition and enforcement of decisions, and it placed special emphasis on cross-border cooperation by requiring the establishment of a Central Authority in every Contracting State. The adoption of the Brussels II Regulation on 29 May 2000 created external competence of the (then) EC for the signature and ratification of the 1996 Hague Convention on the Protection of Children, and, in family law matters, unanimity was required which could not be achieved at the time due to a horizontal dispute between Spain and the United Kingdom about Gibraltar, which affected numerous EC files.3 As time went on without a solution in sight, and France had in the meantime submitted an initiative for a Regulation on the mutual enforcement of decisions concerning rights of access to children,4 the Commission presented a proposal5 which copied and 2 European Convention of 20 May 1980 on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children, ETS No 105. 3 See generally A Schulz, ‘Im Westen nichts Neues’ (2006) Zeitschrift für das gesamte Familienrecht 1309. 4 Initiative of the French Republic with a view to adopting a Council Regulation on the mutual enforcement of judgments on rights of access to children [2000] OJ C234/7. 5 Proposal for a Council Regulation concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility repealing Regulation (EC) No 1347/2000 and amending Regulation (EC) No 44/2001 in matters relating to maintenance COM (2002) 222 final [2002] OJ C203/E155.

The Cooperation between Central Authorities under the Brussels IIa Regulation  401 integrated most of the provisions of the 1996 Hague Convention on the Protection of Children into the future Brussels IIa Regulation. While the chapter on the recognition and enforcement of judgments remained largely unchanged, this concerned mainly the additional rules on jurisdiction in matters of parental responsibility which were contained in the 1996 Hague Convention on the Protection of Children but not yet in the Brussels II Regulation. The Convention’s rules on applicable law were left out and the cooperation provisions were shortened considerably when copied into the Brussels IIa Regulation. Moreover, and very importantly, the proposal envisaged the establishment of Central Authorities in each Member State. The Regulation entered into force on 1 August 2004 and became applicable on 1 March 2005, thus giving Member States the time to establish a Central Authority and enact any implementing provisions considered necessary. The 2002 Commission Proposal had further aimed at replacing the 1980 Hague Child Abduction Convention by rules of Union law in the Regulation. This was not accepted by Member States, and therefore Article 11 of the Brussels IIa Regulation now only supplements the 1980 Hague Child Abduction Convention, which continues to apply in relations among Member States, but does not replace it. Article 53 of the Brussels IIa Regulation leaves it to Member States whether they designate one or more Central Authorities to assist with the application of the Regulation. In the case that a state designates more than one Central Authority, their respective geographical or functional jurisdiction shall be specified. An example of a Member State with several Central Authorities with different geographical jurisdiction was the United Kingdom with separate Central Authorities for England and Wales, Northern Ireland, Scotland and Gibraltar. Examples for Member States with several Central Authorities with different functional jurisdiction are France and Slovakia.6 France has different Central Authorities for requests under Articles 54 and 55, on the one hand, and Article 56, on the other hand, but both are within the Ministry of Justice. In Slovakia, the Ministry of Justice is the Central Authority which facilitates communications between courts, in particular for the application of Article 11(6) and (7) and Article 15 of the Regulation under Article 55(c). Additionally, the Slovakian Centre for International Legal Protection of Children and Youth, which is an authority subordinate to the Ministry of Employment, is the Central Authority assisting with all other requests listed in Article 55. All EU Member States are also parties to the 1980 Hague Child Abduction Convention and the 1996 Hague Convention on the Protection of Children which equally require the establishment and designation of one or more Central Authorities in each Contracting State. As a rule, one single Central Authority shall be designated under each Convention; only federal states, states with more than one system of law or states having autonomous territorial units shall be free to appoint more than one Central Authority. Most EU Member States have designated the same Central Authority for all three instruments, but here again we see variations. For example, in the United Kingdom,

6 The Central Authorities of the Member States and their respective jurisdiction can be found on the e-Justice Portal of the EU at e-justice.europa.eu/content_matrimonial_matters_and_matters_of_parental_responsibility377-en.do?clang=en by clicking on the flag of the Member State concerned.

402  Andrea Schulz the Central Authority for England and Wales under the Brussels IIa Regulation and the 1980 Hague Child Abduction Convention was the International Child Abduction and Contact Unit within the Official Solicitor’s Office. Under the 1996 Hague Convention on the Protection of Children, this office is only competent for England while Wales has its own Central Authority, namely the Welsh Government’s Social Services and Integration branch. In Slovakia, the Centre for International Legal Protection of Children and Youth is the Central Authority under the 1980 Hague Child Abduction Convention while the Ministry of Justice is the Central Authority under the 1996 Hague Convention on the Protection of Children and, as mentioned above, both are Central Authorities under the Brussels IIa Regulation with different functional jurisdiction.

B.  Resources of Central Authorities Since 2008, the Commission has regularly requested an annual activities report from the Central Authorities of the Member States, based on a questionnaire circulated by the Commission. While the first questionnaire asked about the actual number of staff, subsequent questionnaires only contained a question inquiring about the changes in staff numbers which had occurred during the current reporting period. From the replies it becomes clear that the number of staff is not comparable among Central Authorities of the EU Member States, ranging from one person to 21. Sometimes staff work exclusively on one or more of the instruments mentioned earlier; sometimes they have other duties – either under domestic law or under other EU and international ­instruments – at the same time. These organisational differences are caused by several factors impacting on the number of cases a Central Authority has to deal with, including: the size of the population of the Member State concerned; the more or less central geographical location in Europe; the number of neighbouring countries; the existence of classical migration patterns from/to certain countries; economic and other factors causing migration and thus also cross-border family relations; and the scope of obligations of the Central Authority concerned. Obviously, a Central Authority designated under the Brussels IIa Regulation, the 1980 and 1996 Hague Conventions, and the European Custody Convention will have a larger case load than a Central Authority designated for one of these instruments. But also in the application of the instruments there are differences when it comes to the role and tasks of Central Authorities. In most Member States, the Central Authorities assist citizens and facilitate the handling of cases under the Brussels IIa Regulation by forwarding information requests and retransmitting the information received, or by providing the requested information themselves. In general it is not common for them to institute court proceedings under the Regulation while this is sometimes their role under the 1980 Hague Child Abduction Convention.7 Some Central Authorities do not only refer parties to alternative dispute resolution services but offer these services themselves and actively engage in the solution of



7 eg,

in Germany.

The Cooperation between Central Authorities under the Brussels IIa Regulation  403 cases brought to them.8 And while most Member States have limited the role of their Central Authority to providing assistance in carrying out requests under the instruments mentioned above, in others the Central Authority is involved in court proceedings in every parental responsibility case with a cross-border element.9 All these tasks, which will be discussed in the following section, obviously have an impact on the workload and thus the resources required.

C.  Tasks of Central Authorities Two Articles of the Brussels IIa Regulation deal with the tasks attributed to Central Authorities. Article 54 describes their general functions, namely to communicate information on national laws and procedures and take measures strengthening the cooperation among Central Authorities and improving the application of the Regulation. The Article clarifies that for this purpose the European Judicial Network in civil and commercial matters (EJN Civil) shall be used. In practical terms, some results of the obligation to communicate information on national laws and procedures in abstract can be found on the e-Justice Portal. In addition, Central Authorities frequently provide information on their own website10 and respond to individual information requests on national laws and procedures, coming from citizens, competent authorities or other Central Authorities, by telephone and in writing. The tools used by Central Authorities to comply with the two other general tasks will be discussed in section E. Article 55 sets out the cooperation tasks of Central Authorities when working on specific cases in matters of parental responsibility. Several items mentioned in the task list mirror provisions in other parts of the Regulation. For instance, according to Article 55(b), Central Authorities shall provide information and assistance to holders of parental responsibility seeking the recognition and enforcement of decisions on their territory, in particular concerning rights of access and the return of the child, thus supporting them in the application of Chapter III of the Regulation on recognition and enforcement of judgments. Article 55(c) obliges Central Authorities to facilitate communications between courts, in particular for the application of Article 11(6) and (7) – the so-called overriding mechanism following an international child abduction and a refusal to return the child under the 1980 Hague Child Abduction Convention – and Article 15 (transfer of jurisdiction). Under Article 55(d), Central Authorities shall provide such information and assistance as is needed by courts to apply Article 56 (cross-border placement of children). Moreover, Article 55 also contains some tasks which are not specifically linked to any other provision of the Regulation. Article 55(e) obliges Central Authorities to ­facilitate agreement between holders of parental responsibility through mediation or other means, and facilitate cross-border cooperation to this end. Article 55(a) imposes 8 eg, in the Czech Republic. 9 This applies to the Czech Central Authority. 10 See, eg, the website of the German Central Authority in German www.bundesjustizamt.de/DE/Themen/ Buergerdienste/HKUE/HKUE_node.html and English www.bundesjustizamt.de/EN/Topics/citizen_services/ HKUE/HKUE_node.html.

404  Andrea Schulz an obligation on them to collect and exchange information on the situation of the child, on any procedures under way or on decisions taken concerning the child.

D.  Problems Encountered by Central Authorities i.  Identifying the Competent Central Authority Where There is More than One Central Authority in a Member State The Brussels IIa Regulation allows Member States to designate more than one Central Authority. Sometimes precious time is lost in the handling of a case where a Member State has designated more than one Central Authority for all the instruments in matters of parental responsibility mentioned above. Where the Central Authority under the Brussels IIa Regulation is different from the Central Authority under the 1980 Hague Child Abduction Convention, it is sometimes not clear which Central Authority is to effect the transmissions and provide assistance relating to the so-called overriding mechanism established by Article 11(6)–(8) of the Regulation following a refusal to return the child pursuant to the 1980 Hague Child Abduction Convention because this is a Brussels IIa mechanism which supplements the 1980 Hague Child Abduction Convention. Likewise, where a case concerns both the application of the Brussels IIa Regulation and the 1996 Hague Convention on the Protection of Children – eg, because a Brussels IIa request was already pending but subsequently it becomes clear that there is a lis pendens issue with a third state party to the 1996 Hague Convention on the Protection of Children which needs to be clarified, or a transfer of jurisdiction to a state party to the 1996 Hague Convention on the Protection of Children is considered – it is sometimes not clear which Central Authority is the one competent in the particular case. Lastly, where Member States have chosen to designate more than one Central Authority under the Brussels IIa Regulation, sometimes precious time is lost finding out which Central Authority is the right one for a particular case. Some Member States have attributed the role of Central Authority under the Brussels IIa Regulation to the Ministry of Justice or authorities within the remit of that Ministry, while the tasks which are more closely related to child welfare, child protection and social work are with another ministry or authority in the area of labour, social or family affairs, or education. The problem is, however, that in applying the Regulation there might be overlaps between the different areas. Sometimes a court first considers a placement of a child in another Member State pursuant to Article 56 of the Regulation, which requires a prior consultation procedure to be carried out, and later it appears more appropriate in the case at hand to transfer jurisdiction in accordance with Article 15 to the Member State to which the child is to relocate, and have the placement ordered directly by a court of that state. While cross-border placements are generally considered to be in the child welfare remit, transfer of jurisdiction between courts under Article 15 is considered to be a judicial matter. In order to provide appropriate information and advice to citizens and competent authorities, a Central Authority should be familiar with both tools and have an overview of the case as a whole. Hence, a clear delimitation of competences of the different Central Authorities in a Member State and close cooperation among them are essential.

The Cooperation between Central Authorities under the Brussels IIa Regulation  405

ii.  Problems Vested in the Workflow of Central Authorities and Other National Authorities One basic problem encountered by Central Authorities but which is almost embarrassing to mention today, in times when information flows everywhere and in real time, is the lack of a confirmation of receipt encountered in various Member States after a new application has been sent to the Central Authority of such state. Depending on the application in question, it will normally be transmitted to the requested Central Authority electronically, if an electronic transmission is sufficient. If the case has to go to court in the requested state and that Member State still requires the filing of signed paper copies, it will in most cases be sent electronically as advance copy so that the requested Central Authority can start checking for completeness and take further steps such as locating the child, and the paper version will be posted simultaneously. Regrettably in some Member States no acknowledgement of receipt is sent or sometimes only after several weeks or even months. This applies in particular to so-called pure Brussels IIa requests, such as requests for social reports or for other information concerning the situation of the child, and requests for consent to a contemplated cross-border placement, and less so to international child abduction cases. However, without denying the primary urgency of this latter group of cases, it has to be kept in mind that behind many of the pure Brussels IIa applications there is a child at risk, or at least a worried parent who is seeking contact with his or her child or rights of custody, and would already feel more reassured by the mere fact that the requested state has confirmed receipt of the application. So regardless of the means of communication used for transmitting the application, a short acknowledgement by electronic means within a few days of receipt should become standard. Moreover, the subsequent handling by Central Authorities and other competent authorities is often slow in pure Brussels IIa cases. If the requested information is needed in the requesting Member States for proceedings on rights of access, rights of custody or child welfare issues, such proceedings also need to be conducted swiftly because of the different perception of time which children have – and the fact that child welfare proceedings often mean that the child is at risk. Likewise, cross-border placement requests are normally made in cases where no domestic solution could be found; while several attempts were made, the problems have escalated and now the situation of the child urgently requires a change to occur. So these cases are urgent in their own right. The problem is often understaffing of Central Authorities and other competent authorities, and thus they have to prioritise. In these situations, a mere social report about a child – which, though, is of eminent importance to a parent not able to see the child – obviously looks like a much lower priority as compared to children subject to maltreatment, children abducted from their state of habitual residence, and other comparable cases. Moreover, the Central Authority in the requested Member State – often understaffed itself – very often needs to remind and chase the competent domestic authority which ultimately has to carry out the request, eg, for a social report. This again requires resources of the Central Authority which then cannot be used for handling other cases. In many Member States, local child protection authorities seised with a request from abroad do not know how to deal with this, and treat this request as a

406  Andrea Schulz much lower priority as compared with their on-site cases where applicants are literally standing on their doorstep. Indeed it appears that both the legal structure and the practice of judicial cooperation across borders by now sometimes appear to be more developed than the cooperation of local administrative authorities in the matters of child protection. Therefore, even quite willing national child protection authorities have trouble identifying a suitable legal framework permitting and structuring their cooperation across frontiers in a particular case and developing a certain case-based experience and an efficient workflow for the handling of such cases.11 This fact causes more work for Central Authorities who then have to remind national authorities of the pending request and possibly also indicate and explain the relevant legal bases for responding to it.

iii.  Problems Vested in the Brussels IIa Regulation It has to be admitted that the Regulation, while establishing a number of more or less explicit tasks of Central Authorities in Articles 54 and 55, does not go into very much detail. In particular, a major problem is that – unlike for judicial procedures – the Regulation does not contain any translation requirements for requests to be made under the cooperation chapter. This has put an additional burden on Central Authorities. In practice, unless the requesting and requested Member States have a common language, the communication between Central Authorities mostly takes place in English. If a Central Authority receives a request for information from a court, from one of the national child welfare authorities or from a holder of parental responsibility in its own Member State and transmits it to another Member State to be carried out there, in most cases the requesting person or body will have drawn up the request in the language of the requesting Member State. It is the dedicated case workers in the Central Authorities of many Member States who then summarise the content of the request as well as the facts and background given in the transmission letter in English and include this summary in their own transmission letter. There is a lot of good will involved here, but this does impose a heavy burden on requesting Central Authorities, and correct transmission of the real content of the request is not always guaranteed. Other Central Authorities just transmit the request by a cover letter which says no more than ‘Please find attached a request under Article X of the Brussels IIa Regulation’ and attach the untranslated original request – which then obviously leaves the receiving Central Authority somewhat helpless. Once the request has been received by the Central Authority of the requested Member State, it needs to be transmitted to the national authority competent to carry it out. Here again, some Central Authorities take the trouble to summarise or paraphrase the content of the request in the language of the requested Member State while others just pass on the foreign language request. The lack of clear rules in the Regulation with regard to translation requirements obviously contributes to delays in executing these requests.

11 There are promising examples of cross-border cooperation, though, eg, in the Euregio including Aachen (Germany), Roermond (the Netherlands) and Eupen (Belgium).

The Cooperation between Central Authorities under the Brussels IIa Regulation  407 Another problem concerns the vagueness of certain cooperation provisions in the Brussels IIa Regulation. For example, Article 55(a) provides that the Central Authorities shall, upon request from a Central Authority of another Member State or from a holder of parental responsibility, cooperate on specific cases to achieve the purposes of the Regulation. To this end, they shall, acting directly or through public authorities or other bodies, take all appropriate steps in accordance with the law of that Member State in matters of personal data protection to collect and exchange: (i) information on the situation of the child; (ii) on any procedures under way; or (iii) on decisions taken concerning the child. The first point – namely to collect and exchange information on the situation of the child – gave rise to various problems. Firstly, in some Member States this is understood as an obligation to transmit a social report concerning the child only where such report already exists, and not as an obligation to draw up a social report. Secondly, all three points seem to focus on the child only – with regard to reports on the situation of the child, decisions taken concerning the child or proceedings still pending. However, since the Regulation’s main jurisdiction rule is based on the habitual r­ esidence of the child (Article 8), that court will normally not need information about the child from another Member State, but rather about other members of the family (eg, a parent living in another Member State who is seeking access or rights of custody before the courts of the Member State of the child’s habitual residence). It is doubtful, though, whether these provisions are a sufficient legal basis for such requests concerning other family members. Similarly, in child welfare cases concerning a family with several children who moved into the Member State concerned only recently, the courts and child protection authorities may wish to obtain information from the Member State of previous habitual residence concerning siblings of the child at risk which may have been taken into care earlier. Here again, such requests are not explicitly mentioned. Where such a request is transmitted, it is sometimes carried out by the competent authorities of the requested Member State, while sometimes it is not – in particular because of data protection concerns. This was already the case under the Data Protection Directive12 but it is all the more so under the new General Data Protection Regulation.13 These ambiguities frequently prevent requests for information from being carried out, or do at least lead to substantial delay.

E.  Tools for Resolving the Problems Encountered by Central Authorities i.  Practice Guides Assisted by a group of experts, the Commission published a ‘Practice Guide for the application of the new Brussels II Regulation’ in 2005 (and again – unchanged – in 12 Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data [1995] OJ L281/31. 13 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the ­protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) [2016] OJ L119/1.

408  Andrea Schulz 2011). The Guide saw a second edition in 2014 (online)14 and 2015 (printed version) which incorporated the case law of the CJEU but was not changed any further. It contains useful examples, graphs, and flow-charts which help to understand the operation of the sometimes complex provisions of the Regulation and its interaction with other international instruments in the area of international family and child law. The most relevant international instruments interacting and overlapping with the Brussels IIa Regulation are the 1980 Hague Child Abduction Convention and the 1996 Hague Convention on the Protection of the Children. The Hague Conference on Private International Law, under the auspices of which these two Conventions were adopted, has published a series of documents assisting in the implementation and application of the two conventions. With regard to the 1996 Hague Convention on the Protection of Children, in addition to the Explanatory Report by Paul Lagarde,15 there is a Practical Handbook on its operation.16 On the 1980 Hague Child Abduction Convention, with its much longer history and its greater need to be monitored and assisted, there is a wide range of publications, starting with the Explanatory Report by Elisa Pérez Vera,17 and including several Guides to Good Practice on topics such as Central Authority Practice,18 implementing measures,19 preventive measures,20 enforcement21 and mediation.22 Covering the application of both conventions there are brochures on Direct Judicial Communications23 and General Principles and Guide to Good Practice on Transfrontier Contact Concerning Children.24 Some of these have been translated into the languages of EU Member States by the Commission or the Member States.

ii.  Implementing Legislation Unlike a Directive, an EU Regulation does not need to be transposed into national law because it is directly applicable. Nonetheless, it will require some legislative adaptations in the Member States. The procedures established by the Brussels IIa Regulation rest on a foundation of civil procedure rules which are contained in the national law of the Member States. Sometimes the courts and authorities competent under national law need to be communicated to the Commission, and sometimes a Member State has to make a policy choice as to subject matter and venue rules where the Regulation does not provide for a harmonised autonomous rule. These choices are sometimes difficult to make where there is no prior experience with an instrument. This is why the Practice Guides mentioned above were drawn up. Moreover, in the EU the case law of the CJEU

14 See publications.europa.eu/en/publication-detail/-/publication/f7d39509-3f10-4ae2-b993-53ac6b9f93ed/ language-en for the available language versions. 15 Available at assets.hcch.net/upload/expl34.pdf. 16 Available at assets.hcch.net/docs/eca03d40-29c6-4cc4-ae52-edad337b6b86.pdf. 17 Available at assets.hcch.net/upload/expl28.pdf. 18 Available at assets.hcch.net/upload/abdguide_e.pdf. 19 Available at assets.hcch.net/upload/abdguide2_e.pdf. 20 Available at assets.hcch.net/upload/abdguideiii_e.pdf. 21 Available at assets.hcch.net/upload/guide28enf-e.pdf. 22 Available at assets.hcch.net/upload/guide28mediation_en.pdf. 23 Available at assets.hcch.net/docs/62d073ca-eda0-494e-af66-2ddd368b7379.pdf. 24 Available at assets.hcch.net/upload/guidecontact_e.pdf.

The Cooperation between Central Authorities under the Brussels IIa Regulation  409 obviously provides important guidance on the interpretation and implementation of EU law such as the Brussels IIa Regulation.25

iii.  The e-Justice Portal The European e-Justice Portal26 is conceived as a future electronic one-stop shop in the area of justice. As a first step it strives to make life easier for citizens including legal practitioners by providing information on justice systems and improving access to justice throughout the EU, in 23 languages. The European Judicial Atlas in civil matters, which provides user-friendly access to information relevant for judicial cooperation in civil matters, and the pages of the EJN Civil have been integrated into the Portal. In the atlas it is possible to find the competent court in a Member State. The EJN Civil pages offer, among other things, information about relevant national laws and procedures.27 Fact sheets explain for each Member State, eg, which of the parents has custody for a child in the absence of a court decision, and whether and under which conditions a parent may move lawfully with a child to another Member State. The forms under the Brussels IIa Regulation are available on the Portal in the languages of all Member States.28 They can be filled in online in one language and then be printed out in the languages of all Member States.

iv.  Annual Multilateral Meetings of Central Authorities within the EJN Civil Within the framework of the EJN Civil, the Commission organises six meetings per year for the Member States. Since 2006, one of these meetings is dedicated each year to the Central Authorities designated under the Brussels IIa Regulation. During this ­one-day meeting, topics suggested by the Central Authorities and/or the Commission with regard to the practical application of the Regulation, the 1980 Hague Child Abduction Convention and also the 1996 Hague Convention on the Protection of Children are discussed. Over the years, three working groups were established which worked on certain aspects with a view to facilitating the application of these instruments: the so-called Article 11 Working Group carried out extensive work on how the 1980 Hague Child Abduction Convention is applied among Member States and made important suggestions to enhance its application. The group first elaborated a questionnaire for the Member States, and with the assistance of the answers received it took stock of national laws and procedures for applying the 1980 Hague Child Abduction Convention in the Member States. The comparative law report led to recommendations for good practice. The Forms Working Group examined the recommended application 25 For an overview of the case law until 2014 see A Dutta and A Schulz, ‘First Cornerstones of the EU Rules on Cross-Border Child Cases: The Jurisprudence of the Court of Justice of the European Union on the ­Brussels IIa Regulation from C to Health Service Executive’ (2014) JPIL 1. 26 e-justice.europa.eu/. 27 e-justice.europa.eu/content_information_on_national_law_information_sheets-439-en.do. 28 e-justice.europa.eu/content_matrimonial_matters_and_matters_of_parental_responsibility_forms271-en.do.

410  Andrea Schulz forms for return applications under the 1980 Hague Child Abduction Convention which were adopted in 1980 by the Hague Conference on Private International Law together with the Convention. Taking the authentic original languages (English and French) as points of departure, the group established translations into the languages of all Member States which are in line with the official (albeit non-authentic) language versions of the Convention in the Member States. The Commission subsequently recommended to the Member States to use these forms for return applications among Member States. The third working group was the Working Group on Statistics. It developed a table which can be used by the Commission with a view to requesting annual statistics from the Central Authorities, asking how many incoming and outgoing requests pursuant to certain individual articles of the Regulation they received in the year in question. The replies to these statistical forms were an important source which fed the Brussels IIter Proposal which was published in June 2016.

v.  Bilateral Meetings Moreover, since 2010, an additional half-day was added to the annual Brussels IIa Central Authority meetings within the EJN Civil during which the Commission ­facilitates bilateral meetings between Central Authorities of the Member States to discuss pending bilateral cases in which problems have arisen. This opportunity is widely used by Member States, and between 2010 and 2018, the Commission organised between 29 and 50 bilateral meetings at each of the annual meetings of the Brussels IIa Central Authorities, amounting to a total of 359 meetings during which an even greater number of individual cases were discussed. Interestingly, over the years the requests for bilateral meetings demonstrate a shift from child abduction cases to child protection cases (requests for social reports, notifications of children at risk, cross-border placements and cooperation requests in other cases). Adair Dyer, former Deputy Secretary General of the Hague Conference on Private International Law, who was the ‘father’ of many of the Hague children’s conventions, once said that it takes 10 years to get a convention going. And indeed, the more actors that are involved at the national level, the longer it takes to make them all aware of the new instrument. While under the 1980 Hague Child Abduction Convention, the deciding bodies in all Member States are courts, several articles of the Brussels IIa Regulation (and of the 1996 Hague Convention on the Protection of Children) concern child welfare and child protection authorities which most often are local, municipal authorities. As they are, moreover, non-judicial and thus do not automatically feel that an EU Regulation or an international treaty governing jurisdiction and the recognition and enforcement of decisions concerns them, awareness-raising was – and still is – all the more important. By now it can be stated, however, that the Regulation is known and widely used also by child protection authorities.

vi.  Network Judges Several judicial networks have been established to support and enhance the handling of cross-border cases concerning children. Depending on the legal traditions in the

The Cooperation between Central Authorities under the Brussels IIa Regulation  411 Member States, there is a close cooperation of the network judges with the Central Authority in their own Member State while in other Member States, once a case is before the court, any cross-border contacts are considered to be a matter of judicial case management. In spite of these differences, it is worth having a closer look at some of these networks because they have considerably enhanced cooperation in the application of the Brussels IIa Regulation and the 1980 and 1996 Hague Conventions. Within the EJN Civil, several Member States have appointed network judges for the area of family law on the basis of Article 2(1)(d) of the EJN Decision.29 They act as contact points for their colleagues in their own Member State and abroad. Their mandate is to assist colleagues in solving problems which may arise in cross-border cases. If the requesting judge so wishes, the network judges can also facilitate direct judicial communications between judges in different Member States in order to resolve problems in cross-border child and family law cases. In some Member States, the network judge is just an individual while other Member States have appointed several network judges30 or even established an office with support staff and a budget, eg, for translations.31 The International Hague Network of Judges, which is supported by the Hague Conference on Private International Law, was created as early as in 1998. It currently encompasses 133 judges from 83 states of the world.32 In 1998 it was recommended that the relevant authorities (eg, court presidents or other officials as is appropriate within the different legal systems) in the different jurisdictions designate one or more members of the judiciary to act as a channel of communication and liaison with their national Central Authorities, other judges within their jurisdictions, and judges in other Contracting States, in respect, at least initially, of issues relating to the application of the 1980 Hague Child Abduction Convention. It was felt that the development of such a network would facilitate communication and cooperation between judges at the international level and would assist in ensuring the effective operation of the 1980 Hague Child Abduction Convention. By now it is recognised that there is a broad range of international instruments, both regional and multilateral, in relation to which direct judicial communications can play a role beyond the 1980 Hague Child Abduction Convention. Where certain information is needed, eg, where a court in a lis pendens situation wants to find out when exactly a court in another Member State was seised and what the precise object of those proceedings is, sometimes it is advisable to use the

29 Council Decision 2001/470/EG of 28 May 2001 [2001] OJ L174/25 as amended by Decision of the ­European Parliament and the Council of 18 June 2009 [2009] OJ 168/35. 30 eg, in Germany there are four EJN Civil network judges, see www.bundesjustizamt.de/DE/SharedDocs/ Publikationen/EJNZH/Deutsche_Verbindungsrichter_Information.pdf (in German). 31 This is the case in the Netherlands with BLIK (Bureau Liaisonrechter Internationale K ­ inderbescherming – Office Liaison Judge International Child Protection), see www.rechtspraak.nl/Organisatie-en-contact/ Organisatie/Rechtbanken/Rechtbank-Den-Haag/Over-de-rechtbank/Organisatie/Paginas/Liaisonrechterinternationale-kinderbescherming.aspx (Dutch and English). 32 See the most recent list of members of March 2018, at assets.hcch.net/docs/18eb8d6c-593b-4996-9c5c19e4590ac66d.pdf.

412  Andrea Schulz network judges to obtain the required information. However, in other Member States the Central Authority path is more promising. All depends on national procedures, resources, connections, and availability of individuals and legal traditions. Similarly, where courts are considering a transfer of jurisdiction under Article 15 of the Brussels IIa Regulation, some use the network judges to contact a court in the other Member State while others prefer to use Central Authority channels. A flexible and hands-on approach is the guiding principle for both network judges and Central Authorities in their cross-border cooperation. Practice has also shown that it helps enormously if people know each other personally from prior meetings because then it is much more likely that they will pick up the telephone to contact each other if some difficulty arises in the handling of a particular case, which will help to avoid escalation to the political level.

vii.  Cross-border Training International family and child law has developed into an extremely complex legal area because of the many overlapping instruments. Hence, training is of the essence – both at the national and cross-border levels. Some EU Member States have therefore developed training programmes. In Germany with its 22 courts of first and second instance each, hearing return cases under the 1980 Hague Child Abduction Convention, and exequatur proceedings under the Brussels IIa Regulation, and the 1996 Hague Convention on the Protection of Children, respectively, the Central Authority provides a forum for those judges every year at two different dates for a two-day exchange of views and updates on recent developments. At the EU level, the annual EJN Civil meetings of Central Authorities and judges under the Brussels IIa Regulation, including the extra part facilitating bilateral meetings to discuss individual cases, have become an indispensable tool for enhancing the functioning of the Regulation. At a global level, every 4–5 years there is a Special Commission organised by the Hague Conference on Private International Law on the 1980 and 1996 Hague Conventions. These face-toface meetings of all those who work on cross-border cases under these instruments on a day-to-day basis cannot be overestimated – they are of crucial importance to make things work in practice. Moreover, EU Member States are encouraged to join forces and provide multilateral training opportunities on the cross-border application of EU law which may benefit from co-funding by the European Commission offered primarily under the Civil Justice Programme of the EU. This programme aims to eliminate obstacles to the smooth functioning of cross-border civil proceedings in EU countries and thereby to improve the daily life of individuals by fostering access to justice. Further training opportunities are offered by the European Judicial Training Network (EJTN) which often partners with the EJN Civil, ERA and others to develop training standards and curricula. The EJTN coordinates judicial training exchanges and programmes, disseminates training expertise and promotes cooperation between EU judicial training institutions. Central Authority staff have also participated in EJTN training events. In the scope of the Brussels IIa Regulation, multidisciplinary training including members of the judiciary, Central Authority staff and others, such as law enforcement officials

The Cooperation between Central Authorities under the Brussels IIa Regulation  413 and child welfare officers, has proven to be of utmost importance and very beneficial to their cooperation.33

F.  The Brussels IIter Proposal On 30 June 2016, the Commission presented a Brussels IIter Proposal. It aims at preventing children from being held hostage in long legal disputes concerning them, facilitating and speeding up the procedures for families, and reducing costs. The main changes suggested are the following: In cases of international child abduction: –– Introduction of clear and short deadlines for every stage of the procedure; –– Limitation of the number of appeals against a decision on the return of an abducted child to one; and –– Concentration of jurisdiction upon a limited number of courts within each Member State. In matters of parental responsibility: –– It is proposed to abolish exequatur. This should avoid costs and delays while the necessary safeguards are maintained and strengthened to ensure the rights of the defence. –– Furthermore, the proposal aims at strengthening the rights of the child by ensuring that children are given an opportunity to be heard in legal proceedings concerning them. The mutual recognition of Member States’ different practices in this respect should avoid refusals at the stage of recognition or enforcement. At the stage of enforcement: –– With the new rules, delays in enforcement will need to be explained and courts should be able to ensure or suspend provisional enforcement of certain decisions, where appropriate, regardless of whether appeal proceedings are still pending. –– Moreover, the Commission has proposed a minimum harmonisation of the grounds allowing suspension or refusal of enforcement as such. This would ensure that enforcement may be refused or suspended in all Member States under the same conditions, which would increase legal certainty for all citizens, in particular for children, in the EU. Currently, rules on these issues differ considerably among the Member States. On cooperation: –– By providing clearer cooperation rules, the Brussels II ter Proposal ensures a more effective cooperation between Central Authorities. Also, it is proposed to integrate

33 This need for multidisciplinarity was recognised, eg, in a multi-state, multidisciplinary training programme on effective human resource management at the Central Authority of the Czech Republic which was funded by the European Social Fund.

414  Andrea Schulz cooperation of the Central Authorities with the child welfare authorities in their own Member State into the overall cooperation system. The Brussels IIter Proposal is currently being discussed in the Council. It is subject to a special legislative procedure requiring unanimity among the Member States but no agreement of the Parliament. The European Parliament only has to be consulted. The European Parliament and the European Economic and Social Committee have adopted reports supporting the main elements of the Proposal.34 The Ministers of Justice of the EU Member States have discussed the hearing of the child in June 2017, the abolition of exequatur in December 2017, the role of Central Authorities in March 2018 and the placement of a child in another Member State, the circulation of provisional, including protective, measures, and how to implement the abolition of exequatur in June 2018. Hence, some cornerstones of the recast are already clear while a number of technical details still need to be worked out in order to ensure that the Recast Regulation links in well with the procedures established by national laws.

III. Conclusion Cross-border cases concerning children are almost always urgent, and while they are already difficult at the national level because of all the emotions involved, this is even more so where language and culture differences, differences of legal systems and long distances exacerbate the conflict. Central Authorities play a key role in the handling of such cross-border child cases. There is a lot of good will and team spirit among Central Authority staff throughout the EU, fostered by their annual face-to-face meetings within the EJN Civil and day-to-day cooperation. But Central Authorities can only work well if provided with the appropriate work environment, including sufficient resources and clear legal bases defining their powers and duties. While the network of Central Authorities in the EU already today works reasonably well, it is hoped that the Brussels IIa Recast Regulation will further enhance its operation and that Member States will dedicate the necessary resources to their Central Authorities.

34 For the Report of the European Parliament, see www.europarl.europa.eu/sides/getDoc.do?type= TA&language=EN&reference=P8-TA-2018-0017. For the Report of the European Economic and Social Committee see dm.eesc.europa.eu/EESCDocumentSearch/Pages/redresults.aspx?k=(documenttype:AC) (documentnumber:5280)(documentyear:2016)(documentlanguage:EN).

29 The Cooperation of Central Authorities under the Maintenance Regulation HRVOJE GRUBIŠIĆ

I. Introduction Entering into application on 18 June 2011, the Maintenance Regulation addresses the need for common procedural rules simplifying and accelerating the settlement of ­cross-border disputes concerning maintenance claims. The Maintenance Regulation also abolishes formalities required for the recognition and enforcement1 of decisions on maintenance given in a Member State, as outlined by the conclusions of the Tampere European Council of 15 and 16 October 1999. The Regulation simplifies the lives of citizens seeking the establishment and recovery of maintenance obligations in a cross-border context, facilitates the determination of jurisdiction and applicable law, and provides a framework of recognition and enforcement of judicial decisions and authentic instruments. The Regulation replaces the Brussels I Regulation in respect of maintenance obligations emerging from family relationships, as well as European Enforcement Order Regulation.2 However, in simplifying the procedure for the establishment and recovery of maintenance claims, the Regulation introduces a significant innovation compared to the Brussels I framework applicable to maintenance matters: a comprehensive set of rules on judicial cooperation. These rules foresee a system of national Central Authorities established in the Member States, similar to that of the 2007 Hague Child Support Convention. These rules and Central Authorities offer support to applicants under the Regulation at every stage of the process of the recovery of maintenance. In the following paragraphs, the mechanism allowing and the rules governing the cooperation of the maintenance Central Authorities will be considered in greater detail.

1 The Regulation abolishes the need for decisions to be declared enforceable for decisions originating from Member States bound by the 2007 Hague Maintenance Protocol. 2 The Maintenance Regulation does not, however, replace it in regards to cases where the European Enforcement Order is issued for maintenance obligations established by a decision or an authentic instrument originating from a Member State not bound by the 2007 Hague Maintenance Protocol.

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In particular, this chapter will examine the general and specific functions of the Central Authorities, their role in the submission and processing of applications foreseen by the Regulation, the access of Central Authorities to information relevant to the maintenance procedure, and their activities in the context of the European Judicial Network in civil and commercial matters.

II.  Central Authorities and their Functions Representing a focal point for cooperation in maintenance-related matters in the EU, the Member States designate authorities to act as the Central Authorities under the Regulation and to fulfil the duties foreseen therein. Allowing for the possibility of a Member State having a decentralised territorial organisation, the Regulation foresees that multiple Central Authorities can be designated in certain cases.3 In an effort to simplify communication with the authorities of a Member State that has designated multiple Central Authorities, the Regulation foresees that when a Member State does indeed appoint more than just one Central Authority, a single Central Authority is to be designated, to which any communication may be addressed, and then forwarded to the appropriate Central Authority within that Member State. However, even in a case when communication is addressed to a Central Authority which is not competent, the receiving Central Authority is to forward it to the competent Central Authority.4 The Regulation outlines the functions of the Central Authorities, distinguishing between their general5 and specific6 functions. While the specific functions are clearly enumerated, the Regulation provides a broad context for defining the general functions of the Central Authorities and obliges the authorities to cooperate, promote cooperation, exchange information and seek solutions to difficulties arising from the application of the Regulation. These very general obligations set the overall context within which the specific functions of the Central Authorities should be determined. This interpretation of the provisions on the general functions of the Central Authorities becomes all the more relevant when the provisions on their specific functions are examined; for instance Article 51(1), which states that the Central Authorities shall in particular transmit, receive and initiate or facilitate the institution of proceedings in respect of applications made under the Regulation. The use of the wording ‘in particular’ signifies that the list provided is not exhaustive and should be considered in the general context of the provisions from Article 50. The scope for an extensive interpretation of the functions of the Central Authorities under the Regulation is further extended by the use

3 Specifically, federal Member States, Member States with more than one system of law, or Member States having autonomous territorial units, as per Art 49(2). 4 This mechanism is one of many completely mirroring the provisions of the 2007 Hague Child Support Convention in an effort to ensure that the Regulation’s Central Authority system does not impose undue administrative burden by imposing a system different from the one that the Member States already adhere to under the Convention. 5 Art 50. 6 Art 51.

The Cooperation of Central Authorities under the Maintenance Regulation  417 of the verbs ‘facilitate’, ‘help’, ‘encourage’ and ‘provide assistance’ in the listing of their specific functions in Article 51(2)(a) to (j). These verbs are general enough to allow the possibility of adjusting the services provided by the Central Authorities to the specific need of a given case. Looking at the specific functions more closely, it is clear that they are stated in greater detail so as to provide an explicit obligation for the Central Authorities against the general and loosely defined backdrop of Article 50. Greater detail also creates certainty for applicants as to what kind of help they may expect in the course of the proceedings. Regardless of any intentional flexibility in the chosen wording of the provisions enumerating the specific functions, these represent concrete actions to be performed by the Central Authorities. However, sensitive to the fact that imposing the obligation to perform the actions foreseen by Article 51(2) may represent a substantial administrative burden, the Regulation foresees the possibility for the Member States to organise their performance in a way better suited to their internal administrative organisation. Additionally, these actions may be conducted by public bodies other than the Central Authorities, or other bodies subject to the scrutiny of the Central Authorities.7 Furthermore, in another effort to alleviate any undue burden that the above-mentioned obligation represents, the Regulation recognises that even though these functions are comprehensive and extensive in their scope and potential for application, these are administrative functions and the Central Authorities should not shoulder the undue burden of judicial functions. For this reason, a clarification is provided and states that the relevant provisions of the Regulation shall not impose obligations to exercise powers reserved for judicial authorities under the law of a given Member State.8 However, this rule does not fully exclude the possibility that the Central Authorities may exercise judicial functions, or that one of the public bodies empowered to undertake these specific functions may have judicial competences.9 Having considered the role that other authorities may have in a maintenance case, a closer consideration of the article outlining the general functions of the Central Authorities should be made. In its wording, in particular when imposing the obligation to ‘promote cooperation’ in Article 50(1)(a), it should be understood that this provision implicitly recognises that authorities, other than the Central Authorities themselves, have roles in the application of the Regulation and includes them in its scope. In this context, requiring the Central Authorities to promote cooperation, the Regulation creates a framework where the Central Authorities acts as the de facto organiser of cooperation between the authorities of a given Member State when a specific maintenance case requires it. However, even if the Regulation recognises the need for involvement of other authorities, it does not go so far as to directly create obligations

7 Art 51(3). 8 Art 51(4). 9 Especially considering the fact that Art 2(2) foresees the possibility for administrative authorities to have competence in a maintenance proceeding to the extent where they may be defined as courts for the purposes of the Regulation.

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for authorities, other than the Central Authorities.10 Hence the Article uses the verb ‘promote’, to imply flexibility in such cases, rather than obligation. Finally, it is to be noted that the specific functions provided for in Article 51(2) are made available not only when an application under Article 56 exists. The Regulation foresees that the Central Authorities may exercise certain functions listed in Article 51(2)11 also on the request by another Central Authority.12 These functions then play the role of limited assistance in the preparation for the submission of an application under Article 56.

III.  Applications Made through Central Authorities In facilitating the maintenance procedure, the Regulation ensures the possibility for the involved parties to introduce applications13 for establishing and modifying a maintenance decision, as well as its recognition, declaration of enforceability, and enforcement. In this way, the Regulation ensures that the parties may have access to all major stages of the maintenance procedure through the Central Authorities. Even though the Regulation’s provisions on cooperation are decidedly focused on safeguarding creditors’ rights insofar as their ultimate goal is the effective collection of the maintenance obligation, they ensure that the Central Authorities must aid all applicants under the Regulation, including debtors. This ensures that the maintenance procedure is conducted not only efficiently, but also fairly, allowing the debtor the same aid and guidance that is afforded to creditors when they make an application under Article 56 of the Regulation. Indeed, the applications foreseen by the Regulation are the basis for the activity of the Central Authorities, whose specific functions as per Article 51 are available only to parties that have made an application foreseen in Article 56 through the competent Central Authority, and only in respect of that concrete application. In this context, the Regulation outlines the process for the submission of an application under the Regulation in Article 55, and requires that any application foreseen in Article 56 must be made through the Central Authority of the applicant’s Member State of residence to the Central Authority of the requested Member State. This provision establishes that the parties may be considered to have made an application under the concerned provisions, and in turn benefit from the functions of the Central Authorities under the Regulation, only when a Central-Authority-to-Central-Authority workflow has been observed. However, it should not be understood that an application not following the outlined workflow, for example when a party directly sends an application to the receiving Central Authority, will be automatically refused. It could very well be that the national 10 Except where the provision of information to the Central Authorities of their respective Member States is required of authorities for the purposes of cooperation by the provisions of Chapter VII of the Regulation in accordance with the provisions of Arts 61, 62 and 63. 11 Specifically those listed under Art 51(2)(b), (c), (g), (h), (i) and (j). 12 Art 53. 13 Art 56.

The Cooperation of Central Authorities under the Maintenance Regulation  419 legal framework of the receiving Member State allows for the processing of such applications made to the Central Authority of that Member State. In such cases, the application may be accepted and processed, but may not be considered to have been an application made in the sense of Article 56. In such cases, it could also be that national legal framework of the receiving Member State allows the receiving authority to offer assistance substantively identical to that foreseen in Article 51; even so, this assistance cannot be considered to have been provided based on the Regulation. It should also be considered that the above does not mean that a given party may have their decision established, modified, recognised, or enforced under the scope of the Regulation only by making an application through Central Authority of their Member State of residence. Indeed, examining Article 51 outlining the specific functions of the Central Authorities, as well as Recitals 31 and 32 of the Regulation, it becomes clear that the role of the Central Authorities is to assist in the maintenance procedure, and that assistance is a right, rather than an obligation. This in turn means that while an application in the sense of Article 56 may only be made through a Central Authority to another Central Authority, the parties will still have the right to apply directly to a competent authority of the receiving Member State, such as a court, to have their decision established, modified, recognised, or enforced, and will benefit from the application of the Regulation.14 In the context of Article 51, the transmission and receipt of applications and their processing were separated from the other specific functions by being placed in paragraph 1. Thus, it is to be understood that this separates them as the very basic functions in the context of cooperation. This view is supported by the fact that Article 58 provides a clearly outlined procedural framework for the above-referenced actions. Additionally, the time limits for the undertaking of certain procedural steps, ensures swiftness and expediency in the application procedure. Reaffirming in its paragraphs 1 and 2 the role of the Central Authority as the provider of ‘soft’ legal aid, as well as the guardian of efficiency, the Regulation ensures that assistance is to be granted to the applicant to complete the application prior to its transmission. In this way, the burden of r­ esponsibility for aligning the application with the requirements of the Regulation is placed on the transmitting Central Authority, as well as the right to refuse the transmission of an application it deems as not conforming to these requirements. Following the transmission of the application, Article 58 defines further concrete rules and places an obligation on the receiving Central Authority to acknowledge its receipt within 30 days from the date of receipt of the application. The receiving Central Authority must inform the transmitting Central Authority of initial steps that have been or will be taken to deal with the application. Within the same period, the receiving Central Authority is obliged to provide to the transmitting Central Authority the information on who may be consulted regarding the progress of the application. A further deadline of 60 days after the acknowledgement of receipt is also introduced within which the receiving Central Authority is to provide an update on the status of the application.

14 Case C-283/16 MS v PS [2017] ECLI:EU:C:2017:104 goes in this direction in examining whether an application for enforcement may be made only through the Central Authority system, or directly to the court competent to enforce the decision.

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Furthermore, imposing the obligation to process the applications and communicate quickly and efficiently, the Regulation uses the wording ‘most rapid and efficient means of communication at their disposal’.15 This loosely defined term should be considered in the context of Recital 2316 and allows technical innovation to improve gradually the speed and efficiency in which the Article 58 communication is conducted. The 2007 Hague Child Support Convention in its Article 13 makes an even stronger case for the gradual move towards transmission of documents via electronic means by stating that the means of transmission of an application or supporting document may not be grounds for the application’s challenge. The Regulation, however, did not go in this direction, even if the consideration of modern communication technologies is suggested for its purposes. Following the granting of the right of the transmitting Central Authority to refuse the transmission of an application in paragraph 2, paragraph 8 safeguards the right of the receiving Central Authority to also refuse an application. However, the language used in this provision is more restrictive, and while paragraph 2 requires the transmitting Central Authority to be ‘satisfied’ that the application conforms to the requirements of the Regulation, paragraph 8 requires that the non-conformity of the application must be ‘manifest’. The use of the term ‘manifest’ would indicate that the non-conformity of the application to the requirements of the Regulation must be obvious or clear. The possibility for this situation to occur, however, is diminished insofar as the transmitting Central Authority has already scrutinised application and is responsible for its conformity with the requirements of the Regulation. It is also sensible to imply a more limited scope of reasons for refusal of the application considering the previous examination by the transmitting Central Authority. The Regulation goes even further in limiting the scope of refusal of an application by the receiving Central Authority in paragraph 9 by making it clear the need for additional documents may not be the reason for the rejection of an application. It also imposes a deadline of 90 days following the request by the receiving Central Authority within which the additional documentation is to be delivered, before the processing of the incomplete application can be stopped.

IV.  Central Authorities and Access to Information The functions of Central Authorities are numerous, in particular their obligation to promote cooperation on a national as well as the international level, to keep applicants informed on the status of their applications and to provide relevant information concerning the location and financial information of the debtor (and creditor). It is clear that the Central Authorities are to serve as a kind of a central hub for maintenancerelated information in a given case. This need is first recognised in Recital 33 of the

15 Art 58(7). 16 ‘To limit the costs of proceedings subject to this Regulation, the greatest possible use of modern communications technologies, particularly for hearing parties, would be helpful’.

The Cooperation of Central Authorities under the Maintenance Regulation  421 Regulation, stating that ‘the Central Authorities should be able to obtain a certain amount of personal information’, and going so far as to make clear that ‘[The] Regulation should therefore oblige the Member States to ensure that their Central Authorities have access to such information’. This view of the Central Authority as a central point in which relevant information is collected and then disseminated is firmly entrenched in the Regulation’s concept of cooperation. Indeed, in Article 50(1)(a), laying out the most general framework for the cooperation of Central Authorities, a need for cooperation by exchanging information is underlined. However, recognising how relevant an effective flow of case-relevant information is to the proper conducting of maintenance cases, the Regulation does not give only a vague mandate for its establishment; it defines this as a detailed obligation in provisions throughout Chapter VII.17 The obligation to provide information is paramount. As a general set of rules on obtaining and providing information by the Central Authorities, the Regulation provides Article 61. Stating exactly what information may be collected and shared by a given Central Authority in Article 61(2),18 the Regulation provides in Article 61(1) that these pieces of information are to be collected by all appropriate and reasonable means that ‘public authorities or administrations which, in the course of their ordinary activities, hold, within the requested State, the information referred to in paragraph 2 and which control the processing thereof within the meaning of Directive 95/46/EC’.19 Information may also be collected by ‘[any] other legal person which holds within the requested Member State the information referred to in paragraph 2 and controls the processing thereof within the meaning of Directive 95/46/EC’. The wording used in the above provision states that the relevant information is to be collected by ‘all appropriate and reasonable means’. Thus, it should be understood that while the expectation for the Central Authorities to weigh and assess the appropriateness of available routes for the collection of information, a firm obligation is established for them to ensure that the concerned information is indeed collected in the end. This obligation to collect information is not only on the Central Authorities to collect it, but is also an obligation for Central Authorities to provide the information on the side of the authorities when entrusted with it. The limits on which the authorities holding the information can refuse to provide it to the Central Authorities has a very narrow scope

17 This obligation is explicitly enshrined in Arts 51(2)(b) and (c), 53(2), 58(3), (4), (5) and (9) but it should also be considered that the potential to obtain and transmit information exists for a Central Authority ­wherever vague wording such as ‘facilitate’ is used in conjunction with an action and if in such cases the providing of information may indeed be appropriate and facilitate the concerned action. 18 The address of the debtor or the creditor, debtor’s income, and identification of the employer or bank account, as well as information on the debtor’s assets. However, in order to provide protection to the debtor, insofar as only a reasonable amount of information can be collected and shared, the information on the debtor’s assets can only be collected for the purposes of enforcement of a decision, and when the information on the debtor’s income and identification of the employer or bank account are insufficient for this purpose. 19 Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data [1995] OJ L 281.

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and is defined as reasons of ‘national security or public safety’. However, considering the obligation of ‘[any] other legal person which holds within the requested Member State the information referred to in paragraph 2’ to provide relevant information, the Regulation allows for a potentially broader scope of reasons to refuse said information. The concerned legal person is to provide information if ‘it is authorised to do so by the law of the requested Member State’. This provision, allowing for an additional obstacle in the gathering of information by a Central Authority, can be interpreted as a greater degree of cooperation is expected of the authorities of a Member State than of legal persons, even ones holding information relevant to a maintenance case. The concerned information having been collected and transmitted by the transmitting Central Authority the receiving Central Authority, Article 62 sets out the ground rules for the further transmission and use of the concerned information to and by the relevant authorities of the Member State of the receiving Central Authority. These provisions are fleshed out in strict accordance with the principles of the protection of personal data as per Article 6(1) of Directive 95/46/EC. Indeed, according to this principle personal data must be ‘collected for specified, explicit and legitimate purposes and not further processed in a way incompatible with those purposes’. This has resulted in a limited scope of authorities to which this information can ultimately be provided, such as the competent courts or authorities responsible for the service of documents or enforcement, and only for facilitating maintenance claims. The Regulation also limits the scope of persons having access to the concerned information and prohibits the information to be made available to the applicant.20 The same article provides the obligation to ensure the confidentiality of such information in accordance with the rules of the national law,21 as well as the temporal scope in which the information is to be held by the receiving authority.22 However, in defining the temporal scope, the Regulation does not provide a firm definition, but merely states that ‘[the authority] may not store such information beyond the period necessary for the purposes for which it was transmitted’. This approach leaves space for the retention of said information to be determined following a case-by-case examination. Finally, in accordance with the provisions of Articles 10 and 11 of Directive 95/46/EC, the Regulation provides that the data subject23 is to be notified in accordance with the national law of the Member State requested to provide the information of the fact of its transmission. However, conscious of the fact that such a revelation may result in the hiding of assets when the data subject is the debtor, the Regulation goes beyond the mere possibility that the national framework of all Member States may have mechanism for the deferral of such notifications in place. The Regulation provides that if the danger to the successful recovery of the maintenance exists, ‘such notification may be deferred for a period which shall not exceed 90 days from the date on which the information was provided to the requested Central Authority’. 20 With the exception of ‘information merely indicating the existence of an address, income or assets in the requested Member State’. 21 Art 62(4). 22 Art 62(3). 23 The person whose personal information is being collected and exchanged.

The Cooperation of Central Authorities under the Maintenance Regulation  423

V.  Central Authorities and the European Judicial Network in Civil and Commercial Matters Having improved the framework for international maintenance recovery cases as compared to the Brussels I system, and having closely aligned itself with the 2007 Hague Child Support Convention, the Maintenance Regulation sought to augment the potential for direct cooperation of its Central Authorities. In one of the most significant departures of the Regulation from the Convention-styled cooperation system, the European Judicial Network in civil and commercial matters (EJN-Civil) was established as a tool for direct cooperation of the Central Authorities. In Articles 50(2)24 and 60,25 EJN-Civil serves primarily as the forum for regular annual meetings of the Central Authorities. Starting its operation on 1 December 2002, EJN-Civil was set up by Council Decision No 2001/470/EC26 (the Decision) to improve, simplify, and expedite judicial cooperation between the EU Member States in civil and commercial cases. Having been updated in 2009 by Decision No 568/2009/EC,27 EJN-Civil today performs the tasks of facilitating direct contact between members, access to relevant legal information,28 and aids in the evaluation of individual pieces of EU acquis relevant to the area of civil and commercial law. In practical terms, the main tool of EJN-civil is its periodic meetings. These meetings are aimed at identifying possible shortcomings of Union instruments in the area of civil and commercial matters. Also, these meetings focus on developing common understanding on the application of Union instruments. Meetings are also a key factor in enabling its members to solve problematic cases pending between the authorities of the Member States. Against this background, it is hardly surprising that a network dedicated entirely to judicial cooperation would find its way into the Maintenance Regulation as one of the key tools to realising its cooperation goals. Hosted by EJN-Civil on an annual basis since the entry of the Maintenance Regulation into application, the meetings of the Central Authorities serve as a conference dedicated to the discussion and common resolution of problems encountered by both the Central Authorities and the judiciary in general29 in the application of the Maintenance Regulation. In line with the provisions of the Decision, and as already mentioned, EJN-Civil also provides for a means of publishing

24 Obliging the Central Authorities to use EJN-Civil for the purpose of facilitating the application of the Regulation and the strengthening of their cooperation. 25 Obliging the Central Authorities to meet regularly in the context of EJN-Civil. 26 Council Decision No 2001/470/EC establishing a European Judicial Network in civil and commercial matters [2001] OJ L 174. 27 Decision No 568/2009/EC of the European Parliament and of the Council of 18 June 2009 amending Council Decision 2001/470/EC establishing a European Judicial Network in civil and commercial matters [2009] OJ L 168. 28 Factsheets, info required by instruments, guides for professionals and citizens, as well as being a medium for access to foreign law for judges through Member State designated Network Contact Points. 29 The judiciary have access to membership in EJN-Civil under the provisions of the Decision.

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information relevant to maintenance procedures which is aimed at parties and professionals alike.30 Indeed, clarifying the role of EJN-Civil in the operation of the Central Authorities, Recital 39 of the Regulation cites EJN-Civil as a means of publishing information relevant to the facilitation of the maintenance procedure.31 For this reason, the dedicated website of EJN-Civil – the European e-Justice Portal, currently hosts information on the authorities and procedures required to be published by the Regulation,32 as well detailed factsheets on the legal framework related to maintenance proceedings in each of the EU Member States.33 Additionally, in the spirit of the intentionally vague and deliberately broad mandate to promote cooperation bestowed on the Central Authorities by the Regulation, EJN-Civil constantly develops new ways to harmonise and facilitate maintenance proceedings. An innovation in the field of international judicial cooperation, regular bilateral meetings are organised between case handlers and authorities involved in cases falling under the scope of the Regulation. The objective of these meetings is to facilitate pending individual cross-border cases for which solutions may best be found by resorting to a direct, and hands-on approach involving contact between Member States’ authorities. EJN-Civil facilitates these meetings in a confidential setting in the margins of the annual meetings of the maintenance Central Authorities. These direct contacts are a useful and practical means of cooperation and of strengthening of mutual trust. During the period 2013 to 2018, 256 such meetings were organised.

VI. Conclusion Having learned the lessons and built upon the foundations of the Brussels I Regulation and the 2007 Hague Child Support Convention, but also considering the experiences in the application of other relevant acquis,34 the Maintenance Regulation has created a robust and comprehensive framework for cooperation (both of judicial as well as administrative authorities). Moreover, this framework is a reasonable one, ensuring that obligations of cooperation are placed on the relevant authorities of a Member State, but also that their autonomy and the autonomy of the Member States to organise their

30 The publication of all notifications, factsheets, and tools by EJN-Civil, whether required by a given instrument of the civil and commercial acquis or autonomously developed by EJN-Civil for the purpose of facilitating judicial cooperation, is achieved through the dedicated website of EJN-civil – the European e-Justice Portal e-justice.europa.eu/content_european_judicial_network_in_civil_and_commercial_matters21-en.do. 31 Recital 39 states that: ‘To facilitate the application of [the] Regulation, Member States should be obliged to provide the Commission with the names and contact details of their Central Authorities and with other information. That information should be made available to practitioners and to the public through electronic access to the European Judicial Network in civil and commercial matters established by Decision 2001/470/EC’. 32 As per Art 71 of the Regulation. e-justice.europa.eu/content_maintenance_obligations-355-en.do. 33 As per Art 70 of the Regulation. e-justice.europa.eu/content_maintenance_claims-47-en.do. 34 In particular, considering the experiences with the Central Authority system in place under the Brussels IIa Regulation.

The Cooperation of Central Authorities under the Maintenance Regulation  425 functioning is respected. Having the broadest scope of rules on cooperation of the civil and commercial acquis, the Regulation is still, almost nine years after its entry into application, a very advanced and a very forward-looking instrument in this regard, and may be considered a success. However, experience will show whether the broad provisions on the cooperation of authorities or its obligations on the exchange of information can still be improved in the future.

426

part x National Reports

428

30 The Application of the EUFam’s Regulations in Croatia MIRELA ŽUPAN, INES MEDIĆ, PAULA PORETTI, NATAŠA LUCIĆ AND MARTINA DRVENTIĆ

I.  The EUFam’s Database and the Croatian Practice in Facts and Figures The aim of the EUFams’s research project was to evaluate the state of implementation of legal instruments applicable to cross-border family matters adopted by European Union regulations and international conventions. The cornerstone of this research was the application of the Brussels IIa Regulation, the Maintenance Regulation, and the Succession Regulation. The project equally took into account the relevant international conventions, in particular the 1980 Hague Child Abduction Convention, the 1996 Hague Convention on the Protection of Children, the 2007 Hague Child Support Convention and the 2007 Hague Maintenance Protocol. In order to obtain universally applicable research results, the analyses encompassed Bulgarian, Croatian, Czech, French, German, Greek, Italian, Slovakian and Spanish case law. However, the availability of a greater amount of case law pertaining to the Member States project partners provides a fruitful ground for thorough analysis, particularly in relation to those territorial units. Data and outcomes of this research project are thus a valuable source of information on the actual state of implementation of relevant instruments in Croatian practice. The methodology of collecting relevant Croatian case law was twofold. The main sources of information were judgments published by the courts in ‘e-Board’ the publicly available database, hosted by the Justice Ministry.1 However, the obligation of the court to publish judgments in anonymised form is not implemented systematically. Hence, upon request, and by courtesy of the courts, the scientific research team gained additional access to judgments.



1 The

Ministry of Justice of the Republic of Croatia, e-Board, e-oglasna.pravosudje.hr.

430  Mirela Župan, Ines Medić, Paula Poretti, Nataša Lucić and Martina Drventić Table 1  Croatian Case Law in the EUFam’s Database Case by subject matter Type of action in Croatia

Procedure

Divorce

Divorce with attributed claims

Parental responsibility (including abduction)

Maintenance

Successions

18

14

18

6

4

Recognition

8

3

1

x

x

Forms

1

x

x

x

x

27

17

19

6

4

Total number

Approximately 70 Croatian judgments represent a significantly relevant sample. The collected cases may be classified by their subject matter (Figure 1), as well as type of action undertaken by the Croatian authorities (Figure 2). Figure 1  Total Number of Cases in the EUFam’s Database by Subject Matter

Figure 2 Number of Proceedings by Type of Action

The Application of the EUFam’s Regulations in Croatia  431

II.  Mosaic of Cross-Border Legal Sources in Croatia – General Data The cross-border family and succession regime requires the systematic and combined application of relevant international, European, and national legal sources. The Hague Conventions are traditionally applied in Croatia2 – the 1961 Hague Convention on Form of Testamentary Dispositions has been applicable there since 1962.3 The 1980 Hague Child Abduction Convention has been applicable since 1991,4 while the 1996 Hague Convention on the Protection of Children has been applicable since 1 January 2010.5 The 2007 Hague Child Support Convention and the 2007 Hague Maintenance Protocol application correlate to the full accession of Croatia to the EU. The 2007 Hague Maintenance Protocol entered into force together with the Maintenance Regulation and it has applied since 1 July 2013. The 2007 Hague Child Support Convention entered into force on 1 August 2014, following the ratification of the Convention by the EU.6 In addition, Croatia has been a contracting party of the 1956 New York Maintenance Convention7 since 20 September 1993, pursuant to the Notification of Succession.8 The entire EU private international law system has been applicable in Croatia since 1 July 2013 and has been further updated as introduced in the EU in general. For example, the Succession Regulation has been applicable since 15 August 2015, in Croatia as well as in the rest of the EU. Regulations are the valid legal source for determining international jurisdiction, cross-border procedural issues, and recognition and enforcement of the judgments rendered in Members States subject to its respective material, temporal, and geographical scope of application. It is notable that Croatia is partially participating in enhanced cooperation. It is not party to the Rome III Regulation concerning the applicable law regarding divorce. However, enhanced cooperation with the matrimonial property regime has applied in Croatia since 2019. In practice, the application of the regulations before national courts works in conjunction with other internal and external legal sources. Among the internal legal sources, application is in general connected to the application of the Croatian

2 See V Tomljenović and I Kunda, ‘Conflict of Laws Conventions and their Reception in National Legal Systems: The Croatian National Report’ in J Sánchez Córdero (ed), The Impact of Uniform Law on National Law. Limits and Possibilities/L’incidence du droit uniforme sur le droit national. Limites et possibilités (Mexico City, Instituto de Investigationes Juridicas, 2010) 1024–69. 3 The Hague Conference on Private International Law, The Convention of 5 October 1961 on the Conflicts of Laws Relating to the Form of Testamentary Dispositions www.hcch.net/en/instruments/conventions/ full-text/?cid=40. Official Gazette of SFRJ International Treaties, No 10/1962. By notification on succession, Croatia accepted the Convention, Official Gazette International Treaties, No 4/1994. 4 Official Gazette of SFRJ International Treaties, No 7/1991. By notification on succession, Croatia accepted the Convention, Official Gazette International Treaties, No 4/1994. 5 Official Gazette International Treaties, No 5/2009. 6 See Council Decision of 9 June 2011 on the approval, on behalf of the European Union, of the Hague Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance [2011] OJ L 192/39. 7 The United Nations Convention on the Recovery Abroad of Maintenance, New York, 20 June 1956, ­treaties.un.org/doc/Publication/UNTS/Volume%20268/v268.pdf. 8 The Notification of Succession of 8 October 1991, Official Gazette International Treaties, No 4/94.

432  Mirela Župan, Ines Medić, Paula Poretti, Nataša Lucić and Martina Drventić PIL Act9 which dates back to 1982. It is still applicable, but the new Act on Private International Law10 has been adopted and will become applicable in January 2019. Due to a specific subject matter of Private International Family Law, it is closely connected to the Croatian Family Act11 and the Civil Procedure Act.12 In the Croatian legal system, the implementation of novelties in the field of family and succession matters introduced through the regulations is facilitated with the adoption of provisions of the Act on the application of the Brussels IIa Regulation,13 the Maintenance Regulation,14 and the Succession Regulation.15 The application of external legal sources points to the application of the Convention on the Rights of a Child,16 and sometimes to the Convention for the Protection of Human Rights and Fundamental Freedoms.17 Interpretation of the provisions of regulations is subject to case law rendered by the Court of Justice of the European Union (CJEU),18 but such cases are scarcely found in the EUFam’s database.19 At the beginning, it is worth mentioning that adjudication in cross-border matters is provided by regular courts. Currently, there are 24 municipal courts and three county courts functioning as appeal courts in family matters and 15 county courts functioning

9 The Law on Resolution of Conflict of Laws with Regulations of Other Countries (Zakon o rješavanju sukoba zakona s propisima drugih zemalja u određenim odnosima), Official Gazette of SFRJ, No 43 of 23 July 1982 with corrigenda in No 72/82, adopted in Croatian Official Gazette, No 51/91. 10 Law on Private International Law (Zakon o međunarodnom privatnom pravu), Official Gazette No 101/17, would apply as of 29 January 2019. 11 Family Act (Obiteljski zakon), Official Gazette, No 103/15. 12 Art 106(2) of the Civil Procedure Act (Zakon o parničnom postupku), Official Gazette, No 53/91, 91/92, 58/93, 112/99, 88/01, 117/03, 88/05, 02/07, 84/08, 123/08, 57/11, 148/11, 25/13, 89/14. 13 The Law on Adoption of the Council Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (Zakon o provedbi Uredbe Vijeća (EZ) br. 2201/2003 o području nadležnosti, priznanja i izvršenja sudskih odluka u bračnim sporovima i u stvarima povezanim s roditeljskom skrbi), Official Gazette, No 127/13. 14 The Law on Adoption of Council Regulation (EC) No 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations (Zakon o provedbi Uredbe Vijeća (EZ) br. 4/2009 o području nadležnosti, mjerodavnog prava, priznanja i izvršenja odluka te suradnji u stvarima koje se odnose na obveze uzdržavanja), Official Gazette, No 127/13. 15 Act on the Application of Council Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession (Zakon o provedbi Uredbe (EU) br. 650/2012 Europskog Parlamenta i Vijeća od 4. srpnja 2012. o nadležnosti, mjerodavnom pravu, priznavanju i izvršavanju odluka i prihvaćanju i izvršavanju javnih isprava u nasljednim stvarima i o uspostavi europske potvrde o nasljeđivanju), Official Gazette, No 152/14. 16 UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, Vol 1577. M Župan, ‘The best interest of the child – a guiding principle in administering cross-border child related matters?’ in T Liefaard and J Sloth-Nielsen (eds), The United Nations Convention on the Rights of the Child. Taking Stock after 25 Years and Looking Ahead (Leiden, Brill/Nijhoff, 2017) 213–29. 17 Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ETS 5. V Bouček, ‘Croatia’ in J Basedow et al (eds), Encyclopaedia of Private International Law (Cheltenham Edward Elgar Publishing, 2017) 1. 18 P Beaumont and K Trimmings, ‘Court of Justice of the European Union’s Case Law on Family Matters Under Brussles IIa and Maintenance’ in P Beaumont et al (eds), Cross-Border Litigation in Europe (Oxford, Hart Publishing, 2017) 711–41. 19 See, eg: Županijski sud u Dubrovniku, 14 October 2015, Gž 1336/14, CRS20151014 and the decision of the Općinski građanski sud u Zagrebu, 25 May 2017, 131-R1 Ob-649/17-11.

The Application of the EUFam’s Regulations in Croatia  433 as appeal courts in inheritance matters. No concentration of jurisdiction or specialisation is prescribed. At the moment, no Croatian judge is nominated to the International Hague Network of Judges (hereinafter IHNJ) established by the Hague Conference on Private International Law (hereinafter HCCH).20 This research had determined that facilities of judicial cooperation via the European Judicial Network in Civil and Commercial Matters (EJN-civil)21 and administrative cooperation via the Central Authority22 are scarcely employed. This research can speak for several cross-border applications before Croatian courts. In a research period, on average 2 per cent of disputes presented to the court have a cross-border element. This data corresponds to the 2014 findings of Župan relating solely to family-related judgments within a one-year period.23

III.  The Application of the Brussels IIa Regulation The Brussels IIa Regulation is one out of many pieces of a mosaic in the legal regulation of cross-border family relations. This Regulation is, however, a synonym for the heart of European family law. Ever since 1 July 2013, this Regulation is the valid legal source for determining international jurisdiction, cross-border procedural issues, and recognition and enforcement of the judgments rendered in the Member States in matrimonial matters and parental responsibility matters, subject to its temporal and geographical scope of application. Hence, any claim in this specific subject matter submitted to the Croatian court, after 1 July 2013, is subject to these jurisdictional rules; EUFam’s database contains 50 of these cases. However, judgments submitted to Croatian courts for recognition and enforcement are not automatically subject to the Regulation as of the above indicated date. Pursuant to Article 64, only judgments rendered in procedures initiated after Croatia’s full accession are recognised, pursuant to the Brussels IIa Regulation. Hence, judgments rendered in another Member State in cases initiated before Croatia’s full accession are outside its temporal scope of application and are recognised in Croatia pursuant to national PIL rules; EUFam’s database contains 14 of these cases.24 The forms attached to the Regulation correlate to the judgments within its material, geographical, and temporal scope. There were two Croatian cases uploaded to the EUFam’s data base in relation to the forms.

20 See also M Župan, ‘Chapter 10. Cooperation of Central Authorities’ in C Honorati (ed), Jurisdiction in matrimonial matters, parental responsibility and abduction proceedings. A Handbook on the Application of Brussels IIa Regulation in National Courts (Torino, Giappichelli, 2017) 247–73. 21 Decision No 568/2009/EC of the European Parliament and of the Council of 18 June 2009 amending Council Decision 2001/470/EC establishing a European Judicial Network in civil and commercial matters [2009] OJ L168735. 22 Seated in the Ministry for Demography, Family, Youth and Social Policy www.mspm.hr. 23 M Župan, unpublished research based on all family-related, first-instance judgments settled by Croatian courts in the period from July 2013 to July 2014. 24 All of the Croatian recognition cases in EUFam’s database fall out of temporal scope of application of the Brussels IIa Regulation (see, eg: Općinski sud u Zlataru, 21 March 2016, R1-11/2016-4, CRF20163021; Općinski sud u Novom Zagrebu, 14 January 2016, R16726/15, CRF20160114).

434  Mirela Župan, Ines Medić, Paula Poretti, Nataša Lucić and Martina Drventić

A.  Jurisdiction in Matrimonial Matters The majority of Croatia’s EUFam’s case law relates to divorces. Out of a total of 44 divorce judgments, 27 relate solely to sole matrimonial matters, while 17 relate to a divorce with children. Hence, the later touches upon divorce and other attributed claims, such as maintenance and parental responsibility. Jurisdiction has been exercised in matrimonial matters in 18 of the collected cases. Figure 3  Classification of Divorce Cases by Action and Complexity

The factual situation in most divorce cases can be divided into three categories. The first category is divorces where both spouses hold Croatian nationality, but either both or one of them reside abroad.25 Another rather common scenario is cases where one of the spouses is a Croatian national and the other one is a foreign national. The third scenario, with spouses of non-Croatian nationalities is rather scarce. Only in one of the reported cases were the spouses double or triple nationals, holding Croatian nationality as well as other nationalities. However, the Croatian court does not refer to any rule on settling the issues of double nationality.26 In the first scenario, courts have generally established jurisdiction on the basis of the Croatian nationality of both spouses.27 However, in some cases the court did not invoke any legal source, in some it applied Article 3(1)(b) of the Brussels IIa Regulation, and in some it applied the national PIL Act. In the other two scenarios, the court invoked jurisdiction grounded upon habitual residence based on Article 3. In some of the reported cases that fall into this category, the court does not invoke any legal source. In random cases with a mixture of nationalities, domicile, and habitual residence, the Croatian courts were unsystematic in determining the relevant circumstances for establishing habitual residence in Croatia,28 in spite of the clear guidelines of the CJEU.29

25 See, eg: Općinski sud Varaždin, 2 April 2014, P-3/14-19, CRF20140402; Općinski sud u Osijeku, 6 May 2015, P Ob 223/2015, CRF20150506; Županijski sud Pula, 7 April 2015, Gž-269/15-2, CRS20150407; Općinski sud u Belom Manastiru, 4 March 2014, P-60/2014, CRF20140304. 26 See, eg: Općinski sud u Rijeci, 26 September 2014, P-1638/2014, CRF20140926. 27 See, eg: Općinski sud Varaždin, 2 April 2014, P-3/14-19, CRF20140402; Općinski sud u Osijeku, 6 May 2015, P Ob 223/2015, CRF20150506; Općinski sud u Dubrovniku, 23 May 2015, P Ob 28/2016, CRF20160523. 28 See vague analyses of: Općinski sud u Osijeku, 28 May 2015, P Ob 345/15, CRF20150528 v through analyses of Općinski sud Osijek, 23 December 2013, P2-614/2013, CRF20131223; Općinski sud u Dubrovniku, 15 October 2014, Gž 1366/14, CRF20141015. 29 T Kruger, ‘Habitual Residence: The Factors that Court Considers’ in Beaumont et al (n 18) 741–55.

The Application of the EUFam’s Regulations in Croatia  435 The provisions of this Regulation are applicable to cross-border divorce cases in all Member States (except Denmark), irrespective of the nationality or domicile of the parties, and even in cases relating to third-country nationals.30 Similar to earlier research,31 this research confirms that in a number of cases Croatian courts have failed to treat cases with a foreign element properly. The case law signals that private international law is applied only if the facts of the case bear a strong foreign element. The application fails in ‘foreign domestic cases’.32 Additionally, in most cases courts have not referred to the rules of jurisdiction set out in the Regulation, which they ought to do in the explanation of the decision.33 In some of the cases, the court only refers to the Croatian PIL Act. Since the Brussels IIa Regulation and relevant CJEU case law34 enables the application of residual grounds of jurisdiction, room for the application of the national PIL Act is indeed preserved. Case law demonstrates that the national PIL was applied in the specific factual situation where no Member State had jurisdiction. Hence the Croatian PIL Act35 provided grounds to adjudicate in a specific divorce case.36 However, in each case, the court did not clearly declare that application of the national PIL Act as a legal source is based on the Brussels IIa Regulation (Articles 6–7).37 In several of the reported cases, the Croatian PIL Act was wrongly used by the court to ground jurisdiction in factual situations that clearly indicated that the Brussels IIa Regulation should have been applied.38

B.  Jurisdiction in Matters of Parental Responsibility Situations triggering the attribution of one subject matter to another principal claim often arise in cross-border divorces with minor children. They present a specially

30 D Coester-Waltjen, ‘Chapter D.7: Divorce and personal separation’ in J Basedow et al (eds) Encyclopedia of Private International Law (Cheltenham, Edward Elgar Publishing, 2017) 547. 31 I Grbin, ‘Hrvatska sudska praksa u sporovima s međunarodnim obilježjem’ (2012) 62 Zbornik Pravnog fakulteta u Zagrebu 153, 154. 32 Th M De Boer, ‘Facultative choice of law: the procedural status of choice of law rules and foreign law’ in (1996) 256 Recueil des cours 244–245. 33 Although there is no explicit provision in the Croatian Civil Procedure Act (CPA) concerning the ­application of the legal source in establishing jurisdiction, still the obligation of the judges to include the reference to the relevant provisions of the Regulation on which the Court established its jurisdiction in the dispute could be derived from the provision of Art 388 of the CPA. That provision obligates a judge to refer to the substantive law relevant when delivering a judgment. In EUFams’s data base cases may be found on: Općinski sud u Osijeku, 16 June 2015, 21/2015, CRF20150616. 34 Arts 6–7 of the Brussels IIa Regulation, Case C-68/07 Kerstin Sundelind Lopez v Miguel Enrique Lopez Lizazo [2007] ERC I-10403, ECLI:EU:C:2007:740. 35 Art 61 of the Croatian PIL Act (n 9). 36 In a divorce petition launched before the Croatian court, with a wife holding solely Croatian citizenship and habitual residence in Switzerland, and a husband holding Swiss citizenship and habitually resident in Thailand, obviously no Member State court has jurisdiction pursuant to the Regulation. Općinski sud u Osijeku, 28 May 2015, P Ob 345/15, CRF20150528. 37 See, eg: Općinski sud u Dubrovniku, 23 May 2016, P Ob 28/2016, CRF20160523; Općinski sud u Osijeku, 30 November 2015, P Ob-916/2015, CRF20151130; Općinski sud u Splitu, 25 May 2016, Pob – 409/13, CRF20160525; Općinski sud u Osijeku, 28 May 2015, P Ob 345/15, CRF20150528. 38 See, eg: Županijski sud u Rijeci, 28 November 2013, GŽ-5432/2013-2, CRS20131128; Općinski sud u Osijeku, 30 November 2015, P Ob-916/2015, CRF20151130.

436  Mirela Župan, Ines Medić, Paula Poretti, Nataša Lucić and Martina Drventić challenging issue to Croatian practice. Although such claims are interrelated, different headings of the Regulation apply to the attributed matter in relation to the parental responsibility. Moreover, an attributed maintenance claim requires application of yet another legal source. In the EUFam’s Croatian database, parental responsibility issues are dealt with in divorce procedures in 17 cases, and as separate issues in 19 cases. This research project evidences the lack of synchrony among international and European sources with national substantive and procedural law. Various layers of i­ncoordination can be pinpointed.

i.  Demarcation with the 1996 Hague Convention on the Protection of Children Demarcation with the 1996 Hague Convention on the Protection of Children is rather problematic for Croatian courts. It is evidenced when determining and transferring jurisdiction. The disconnection clause of the 1996 Hague Convention on the Protection of Children of Article 52(1) gives priority to any other international instrument rendered. Article 61 of the Brussels IIa Regulation provides a special disconnection clause in respect of the 1996 Hague Convention on the Protection of Children. In general terms, no priority is afforded to the Brussels IIa Regulation. Such priority is reserved only for a child habitually resident in the territory of a Member State, while the 1996 Hague Convention on the Protection of Children will apply whenever the child has his/her habitual residence in a non-EU Contracting State, or if the child is present in a non-EU Contracting State without having habitual residence there. Croatian EUFam’s case law reveals gaps in the application of the jurisdictional scheme of both instruments in a situation where a child is present in a Member State, but has habitual residence in a third non-Contracting State. Such a case falls out of the geographical scope of the 1996 Hague Convention on the Protection of Children. Application of the Brussels IIa Regulation may be justified if conditions are met for application of either Articles 12, 13 or 14. Although courts are keen to apply international legal sources properly, the number of sources and the overlapping or disconnection among them may be problematic to handle for a national judge.39 Another scenario relating to the transfer of jurisdiction issue is apparent in Croatian case law as well.40 Though a shift from the application of the Brussels IIa Regulation

39 A dispute concerned spouses of mixed nationalities (father Croatian, mother Bosnian, child dual national) who lived separately in these two states, with the child living with his mother in Bosnia. Almost simultaneously, they both initiated proceedings for divorce, parental responsibility, and maintenance before both the Croatian and Bosnian courts. The Croatian court applied the Regulation but read it incorrectly in relation to the parental responsibility proceedings. It grounded jurisdiction over a child on Art 12(4), as it read that para 4 applies to children resident in a non-EU Contracting State that is not a party to the 1996 Hague Convention on the Protection of Children, as such jurisdiction may be found in the best interest of a child (Općinski sud u Dubrovniku, 10 October 2014, Gž1366/14, CRF20141015). 40 A Dubrovnik court dealt with a parental responsibility issue over a minor brought to Croatia by a Montenegrin mother. Previously, the family lived with the Dutch father in the Netherlands. As the mother moved with the child from Croatia to Montenegro, to escape the possible intervention of the social authority, the court transferred the case pursuant to the 1996 Hague 1996 Convention on the Protection of Children (Općinski sud u Dubrovniku, 8 January 2014, P-R/12/2014).

The Application of the EUFam’s Regulations in Croatia  437 (if a child is habitually resident in a Member State) to a 1996 Hague Convention on the Protection of Children provision of transfer (if a child moves to a Hague Convention third Contacting State) should be fully justified by logic and procedural efficiency, it is not permitted. The court of a Member State once seised must serve justice to the end and may not decline its jurisdiction by applying the doctrine of forum non conveniens.41

ii.  Demarcation with National Substantive and Procedural Legislation One layer of the problem is the issues encountered with demarcation between the Regulations and national substantive and procedural legislation. Croatian family law prescribes that, in a divorce case with minor children, a judge must deal ex officio with several attributed claims. On the other hand, the Brussels IIa Regulation requires the judge to inspect the court’s jurisdiction and to continue the proceedings only in relation to those claims where its jurisdiction is justified by the Regulation. In disputes with a child living abroad, jurisdiction over parental responsibly may be lacking. In relation to this matter, the CJEU took the opportunity to address ex officio the combined claims prescribed by national provisions and their relation with the Regulation in a properly settled Italian case: C-184/14 A v B.42 The court held it lacked jurisdiction to entertain the parental responsibility proceedings, since the children were habitually resident in England and no prorogation of jurisdiction was evident. Still, ambiguity existing in Croatian practice is not alone, as confirmed by the Bulgarian court referral of 23 October 2017 in Case C-604/17 PM v AH.43 Another problematic aspect of the combined application of internal law and a regulation relates to mandatory counselling prior to divorce. The Croatian Family Act provides for a procedure of mandatory counselling before the competent Centre for Social Welfare as a legal prerequisite for initiation of a divorce procedure before the court. Legislators’ confidence in a consensual solution regarding child-related matters (parental responsibility, access rights, maintenance) creates an obstacle to adjudication in cross-border cases where Croatian jurisdiction is lacking pursuant to the Regulation. The issue of interpretation of the term ‘court’, as defined in Article 2(1) of the Brussels IIa Regulation, is misunderstood, or at least uncertain due to the unclear legal nature of mandatory counselling. Since a Centre for Social Welfare action is a prerequisite for divorce initiation, they certainly must decide upon it. The possible solution is to conceive the Centre for Social Welfare as a ‘court’, which may render an order stating that the procedure of mandatory counselling was not conducted because the child does not have habitual residence in Croatia.44 However, this interpretation fails since

41 For a thorough analysis see M Župan and M Drventić, ‘Parallel Proceedings – Lis Pendens and Related Actions’ in Ch 15 of this book. 42 Case C-184/14 A v B [2015] ECR I-10403. 43 Case C-604/17: Request for a preliminary ruling from the Varhoven kasatsionen sad (Bulgaria) lodged on 23 October 2017 – PM v AH. 44 M Župan ‘Chapter 1: Scope of application, definitions and relation to other instruments’ in C Honorati (ed) Jurisdiction in matrimonial matters, parental responsibility and abduction proceedings. A Handbook on the Application of Brussels IIa Regulation in National Courts (Torino, Giappichelli/Peter Lang, 2017) 26.

438  Mirela Župan, Ines Medić, Paula Poretti, Nataša Lucić and Martina Drventić the ‘order’ given by the Centre for Social Welfare is not equated to a judgment or administrative order, but is a mere conclusion.

iii.  Children’s Hearings The opinion of the child is to be taken into account in any adjudication procedure relating to rights and obligations entailing a child. The case law collected indicates that the bare fact that the child has been heard is not particularly emphasised in all judgments. Moreover, it cannot be derived from some decisions issued in accordance with the Family Act that the child’s opinion was considered. It is important to emphasise that all judgments collected for the purpose of this project were issued based on the 2003 Family Act45 which is no longer in force. According to Article 89(5) of the 2003 Family Act, children shall have the right to find out in an appropriate way about the important circumstances of the case, to be advised, to express their opinions in this respect, and to be informed about the possible consequences of their opinion. This refers to all procedures in which a decision relating to a child’s right or interest is to be made. The children’s opinions should be taken into consideration in accordance with their age and maturity. Some decisions clearly reveal that, pursuant to Article 89(5) of the 2003 Family Act, the court made the decision on parental responsibility based on, among other things, the child’s opinion. In one case, the court took into account the children’s wish to remain, until the completion of their education, with their father in Croatia where they had habitual residence. The court added that their mother, who had habitual residence in Germany, could retain regular contact with the children upon her arrival in Croatia and during summer and winter holidays.46 Other decisions revealed that the court did not take the child’s views into account at all.47 The fact that the court, in some decisions, does not mention the child’s opinion does not necessarily mean that the child’s views were not taken into consideration in the decision-making, but only that the reasoning does not contain that information. In 2015, Croatia adopted a new Family Act which replaced the 2003 Family Act. Like the 2003 Family Act, the new Act prescribes, in its Article 82(2), that in all procedures in which a decision relating to a child’s right or interest is to be made, the child shall have the right to find out in an appropriate way about the important circumstances of the case, to be advised, to express his/her opinion in this respect, and to be informed about the possible consequences of his/her opinion. Furthermore, the child’s opinion should be taken into consideration in accordance with his/her age and maturity. Spouses that have a minor child together are obliged to attend mandatory counselling at the competent social welfare centre prior to the initiation of judicial divorce proceedings.48 If spouses

45 Family Act (Obiteljski zakon), Official Gazette, No 116/03, 17/04, 136/04, 107/07, 57/11, 61/11, 25/13, 05/15. 46 See, eg: Općinski sud u Požegi, 11 March 2016, P-Ob-28/15-12, CRF20160311. 47 See, eg: Općinski sud u Đakovu, 27 June 2013, 8 R1-27/13-5, CRF20130627. 48 Except prior to the initiation of divorce proceedings involving minor children, mandatory counselling shall be attended before the initiation of other judicial proceedings relating to the exercise of parental responsibility and the maintenance of contact with the child.

The Application of the EUFam’s Regulations in Croatia  439 with a minor child wish to get divorced based on an agreement in non-contentious proceedings, they shall draw up a parental responsibility agreement (hereinafter: PRA). In line with the legal definition stated in Article 106(1) of the 2015 Family Act, a PRA is a written agreement of the parents on shared parental responsibility in the circumstances of living separately. Article 106(4) explicitly regulates that parents are obliged to introduce their children to the content of the PRA and provide them with the possibility to express opinions, in accordance with their age and degree of maturity. Parents shall also respect their children’s opinions in accordance with the well-being of the child standard. Prior to the acceptance of a non-contentious divorce request, the court shall check if spouses and their children agree with the PRA and if it is compliant with the well-being of the children. If there is a suspicion that particular clauses of the PRA are contrary to the well-being of the children, the court might obtain further evidence by hearing the parents and the children.49 To sum up, the existence of the PRA does not prevent a court from hearing children in the event of doubt about the compliance of the agreement with the best interests of the children.50 In principle, the court is not likely to check whether the children’s opinion is compliant with its formulation in the PRA unless there is a suspicion about the compliance of the PRA with the best interests of the children. If parents do not reach a PRA, their marriage will be ended in contentious divorce proceedings. Considering that divorce proceedings involving minor children deal with many issues affecting children’s rights and interests, Article 360 of the 2015 Family Act imposes a liability on the court to provide the children with the possibility, unless the child does not wish to do so, to express their opinions regarding issues affecting their rights and interests. It can be concluded that in terms of the exercise of the children’s right to express their views, the new family legislation truly confides in parents in situations in which they reach a PRA. Considering that Article 23 of the Brussels IIa Regulation explicitly stipulates that a judgment relating to parental responsibility shall not be recognised if it is passed, except in case of urgency, without the children having been given an opportunity to be heard, it is not certain whether the formulation of the children’s opinion in the PRA will be sufficient evidence that due weight was given to the views of the children. For the new family legislation, this represents an international private law challenge and how it will be overcome in the future, remains to be seen. In national cases collected for the EUFam’s database, it is hard to identify whether the children were given an opportunity to express their views. This internal issue may jeopardise achieving cross-border effects for Croatian judgments, as children’s hearings are one of the grounds for refusing recognition of a judgment.51 The solution may 49 S Aras Kramar, ʽNovi pristup uređenju postupka radi razvoda braka u Hrvatskojʼ in V Rijavec and others (eds), Zbornik radova s međunarodnog savjetovanja Aktualnosti građanskog procesnog prava – nacionalna i usporedna pravnoteorijska i praktična dostignuća (Split, Faculty of Law of the University of Split, 2015) 253. 50 N Lucić, ʽProtection of the right of the child to be heard in divorce proceedings – harmonization of Croatian law with European legal standardsʼ in D Duić and T Petrašević (eds) EU and Comparative Law Issues and Challenges Series: Procedural Aspects of EU Law (Osijek, Josip Juraj Strossmayer University of Osijek, Faculty of Law Osijek, 2017) 414. 51 U Magnus and P Mankowski, European Commentaries on Private International Law (Sellier, European Law Publishers, 2017).

440  Mirela Župan, Ines Medić, Paula Poretti, Nataša Lucić and Martina Drventić be found in the Brussels IIter Proposal, which directly refers to Article 12 of the UN Convention on the Rights of a Child in respect of this matter.

iv.  Lawful Removal of a Child Case law evidences that free movement of workers may lead to a situation where migration with a child may be questioned in terms of lawfulness or unlawfulness.52 The extent of the problem is best described by the fact that the Council of Europe found it necessary to adopt a Recommendation with the aim to provide guidance to Member States on situations concerning child relocation.53 It could be used as a tool for the prevention and resolution of disputes on child relocation as a means for reducing the incidence of child abduction. Although enacted before the adoption of the aforementioned Recommendation, Croatian law includes most of its focal points and provides a solid basis for deciding on the lawful or unlawful removal of a child.54 Most often the removal of the child to another jurisdiction is related to the issue where a parent holding parental responsibility and custody over a child needs to obtain a travel document for the child without the other parent’s consent. In the context of a cross-border situation, the top question is which Member State’s authority is responsible for the issuance of a document replacing the parent’s consent. According to the CJEU ruling in Case C-215/15 Gogova,55 the consent must be issued by the competent authorities of the Member State of the child’s habitual residence. An insight into Croatian EUFam’s case law clearly shows that parties are still rarely aware of the potential lawfulness or unlawfulness of the removal. The number of unlawful, removals and accordingly child abduction petitions, greatly exceeds the number of petitions for the lawful removal of a child. Out of almost 80 cases, there are only two in which the parent having parental responsibility and custody over a child applied for a judgment which would enable the parent to move abroad with his or her children.56 Both cases related to Croatian citizens (mother, father, and children) with habitual residence in different states.57 The habitual residence of the mother and children was in Croatia, while the father had his habitual residence in another Member State. In order to move with her children to this other Member State, the mother applied for sole child custody which would, according to Croatian law, enable her to obtain travelling documents for her children without the father’s consent. Available case law shows that in such cases, due to the common citizenship of the parties, courts tend to overlook the existence of the cross-border element and instead

52 See generally: I Medić, ʽInternational Child Relocationʼ in M Župan (ed), Private International Law in the Jurisprudence of European Courts – Family at Focus, (Osijek, Faculty of Law Osijek, 2015) 109–33. 53 Council of Europe’s Committee on legal Co-operating, Recommendation CM/Rec (2015) 4 and explanatory memorandum. Preventing and Resolving Disputes on Child Relocation, rm.coe.int/16807096c9. 54 See: Art 100(2)(3), Art 104(1), Art 108(1)-(3), Art 109(1)(2), Art 484(1)(2) of the Family Act (n 11). 55 Case C-215/15 Vasilka Ivanova Gogova v Ilia Dimitrov Iliev [2015] ECLI:EU:C:2015:710. 56 See, eg: Općinski sud u Koprivnici, 22 September 2016, 9 P Ob-38/16-26, CRF20160922; Općinski sud u Požegi, 4 September 2017, 10 R1 Ob-78/2017-3, CRF20170904. 57 Some other cases which are not included into EUFam’s data base may serve as an indication that such a set of circumstances prevails. Eg, Županijski sud u Zagrebu, P 36 Gž2-7/14-2 or Općinski građanski sud u Zagrebu, P 143-P2-835/10-74.

The Application of the EUFam’s Regulations in Croatia  441 simply proceed according to national sources of law.58 In those particular cases, the outcome of the case was the same as if they had applied Article 8 of the Brussels IIa Regulation because of the fact that children had their habitual residence in the territory of Croatia. However, such practice is to be avoided because in a different set of circumstances it can lead to results which are contrary to Article 8 of the Brussels IIa Regulation and the CJEU ruling in Case C-215/15 Gogova.

v.  Unlawful Removal of a Child – Child Abduction The EUFam’s database contains nine abduction cases. Problems pinpointed in two earlier studies on child abductions are unfortunately retained in the majority of fresh cases as well.59 Despite several ECHR rulings clearly pointing to inadequacy of the child abduction procedures in Croatia, the procedure to enact an implementing law on international child abductions has been pending for a decade. The main deficiencies lie in the fact that procedures upon the return of applications last extensively long (both before Central Authorities and with court proceedings). Additionally, concepts embodied in the 1980 Hague Child Abduction Convention are not properly applied. The Brussels IIa Regulation as a legal source is applied in merely half of the EU abductions. Among diverse issues, the emphasis is on the concept of applicable law for determining if relocation is legal or illegal. The definition of the 1980 Hague Child Abduction Convention clearly states that the holder of parental responsibility may be a natural or legal person. If the child is institutionalised by public intervention, the rights of parents are suspended or limited; hence any removal of a child would amount to child abduction. Several similar scenarios are apparent in Croatian practice, where the court justified the refusal of a return because the applicant was an institution.60 Case law evidences that Croatian courts failed to apply the applicable substantive law of the child’s habitual residence and models of depriving or granting parental responsibility and a right to decide on the residence of a child.61 Courts frequently have even relied upon a decision on the merits of parental responsibility rendered abroad, where the care was given to the abducting parent. In these cases, the court rendered the decision that relocation was not unlawful. The explanation was grounded on arguments that care over a child means that the parent with care rights can change the residence of a child as well. However, the court fails to establish if under the foreign applicable law (of the habitual residence of a child) care given to one parent and visitation given to the other, means that the parent with

58 See: I Medić and P Mioč, ʽPreseljenje djetetaʼ in B Rešetar et al (eds), Suvremeno obiteljsko pravo i p­ ostupak, (Osijek, Faculty of Law Osijek, 2017) 105–36. 59 M Župan and S Ledić, ʽCross-border family matters – Croatian experience prior to EU accession and future expectationsʼ (2014) 3–4 Pravni vjesnik 49, 49–77; M Župan and T Hoško, ʽApplication of the Hague Child Abduction Convention in SEE region: Croatian national reportʼ in M Župan (ed), Private International Law in the Jurisprudence of European Courts – family at focus (Osijek, Faculty of Law Osijek, 2015) 227–43. 60 Općinski sud u Đakovu, 27 June 2013, 8 R1-27/13-5; Županijski sud u Zagrebu, 12 June 2015, Gž Ob-103/15-2. 61 M Župan and M Drventić, Preliminary results of the study ʽCross-border removal and retention of a child – Croatian practice and European expectationʼ. Županijski sud u Zagrebu, 2 Gž Ob-103/15-2, 12 June 2015.

442  Mirela Župan, Ines Medić, Paula Poretti, Nataša Lucić and Martina Drventić visitation is deprived of the right to decide on the relocation of a child to a foreign country.62 In the majority of cases, the return was refused, pursuant to Article 13(1)(b). In extra-EU abductions, the main arguments involved alleged domestic violence against the mother and possible physical trauma for a child if they were separated from the abducting parent. In terms of intra-EU abductions, the proper application of the Brussels IIa Regulation would result in returns that can only be refused subject to lack of adequate arrangements and pursuant to Article 11(4). This provision prescribes that a court cannot refuse to return a child on the basis of Article 13(1)(b) of the 1980 Hague Child Abduction Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return. Croatian case law points to the conclusion that the exception was taken loosely.63 However, fresh cases indicate that first instance courts, as well as the appeal court in an overturn of the first instance, non-return order, completely ignored proven violence or proven intolerable situation of a child upon return and ordered the unconditioned return with no adequate arrangements set.64

vi.  Transfer of Jurisdiction Transfer to a court better placed to hear the case (Article 15) occurred in only three Croatian cases. Two were related to incoming transfer requests, while one was related to an outgoing transfer request. In one of them, the transfer was related to the application of the 1996 Hague Convention on the Protection of Children, as the case was transferred to Bosnia. Due to the undisputed logic in this move, the Regulation does not contain any rule which allows a judge departure from jurisdiction because of the Regulation.65 Clear transfer issues among EU Member States are not defined by any national procedural rules. Among numerous issues that courts need to cope with in relation to transfer (highlighted by judges and integrated in the EUFam’s Croatian national report) the case law revealed one case where the transfer request proposed by the court in London was denied as ungrounded.66 The Croatian municipal court examined all the facts of the case necessary to establish if such a transfer would be justified. The proceedings were conducted promptly, and the reasoning of the court contains all necessary factual and legal elements to justify the judgment. The court did not particularly examine the best interest of the child, but the mere justification pointed to such reasoning. In another transfer case, the Croatian judicial authorities, as well as the Justice Ministry, play pingpong with the transfer request presented by one of the parents. The dispute arose over a question of whether it is possible to submit the transfer request under Article 15 in

62 Under applicable substantive law in these cases this conclusion of the courts is false. Općinski sud u Rijeci, 3 April 2015, P Ob-12/2015; Županijski sud u Rijeci, 21 December 2015, Gž Ob-120/2015-2. 63 M Župan and M Drventić, ʽKindesentführung vor kroatischen Gerichten mit besonderer Rücksicht auf die aus Deutschland kommenden Anträgeʼ (2018) 1 Revija za evropsko pravo/Review of European Law (accepted for publication). 64 Općinski sud u Rijeci, 16 June 2017, R1Ob-649/16; Županijski sud u Puli, 3 November 2017, Gž Ob- 275/2017-2. 65 See, eg: Općinski sud u Dubrovinku, 1 August 2014, P-R/1 2/2014, CRF20140801. 66 See, eg: Općinski sud u Sisku, 19 February 2016, R1-eu-2/16, CRF20160219.

The Application of the EUFam’s Regulations in Croatia  443 relation to a case in appeal. If yes, is it the first or the second instance court that should ask for a request? The Supreme Court did not respond to the first question, but it held that the first instance court should ask for a transfer.67

IV.  Application of the Maintenance Regulation A.  General Data Of 76 Croatian decisions in the EUFam’s database, the court applied and recalled the Maintenance Regulation in six. In all those cases, the court had referred to Article 3 of the Maintenance Regulation, prescribing rules on jurisdiction. Nevertheless, the number of decisions which raised issues in relation to maintenance is higher. In eight decisions, the court dealt with maintenance matters, but failed to recognise the crossborder element and to apply the Maintenance Regulation and applied the national law instead. It can be stated that the maintenance issue was raised in a total of 14 decisions.68 In most of the cases, the maintenance claim was attributed to other claims – in six cases the maintenance claim was raised together with the divorce claim and claim for parental responsibility and in two cases the maintenance claim was raised together with the parental responsibility claim. In two cases, a claim to the court to issue a maintenance order was raised, in three cases a claim for increasing maintenance was raised, and in one a claim for determination of maintenance was raised. Figure 4  Number of Maintenance Cases and their Classification by Action and Complexity



67 Decision

of the Supreme Court of the Republic of Croatia, 10 July 2017, Grl 629116-2.

68 The EUFam’s database – Final Version, www.eufams.unimi.it/2017/12/28/eufams-database-final-version/.

444  Mirela Župan, Ines Medić, Paula Poretti, Nataša Lucić and Martina Drventić

B.  Maintenance Obligations in Croatia Maintenance obligation in Croatia is governed by the Family Act, which prescribes that maintenance is the duty and right of parents and children, spouses and extramarital partners, lineal relatives, and stepchild and step-parents where provided for by the law.69 These persons contribute to their mutual maintenance according to their own capacities and the needs of the person maintained, in line with the Family Act.70 The rules on Maintenance Regulation apply in Croatia to the proceeding instituted, to court settlement approved or concluded, and to authentic instruments established from its entering the EU on 1 July 2013.71 The exception from the default rule on its temporal application contained in Article 75(2) does not produce any effect on decisions issued in Croatia, because the Brussels I Regulation entered into force on the same date as the Maintenance Regulation. In line with that, rules on sections 2 and 3 of Chapter IV cannot be applied in relation to the decision given in Croatia, meaning that the decisions issued in the proceedings instituted before 1 July 2013 cannot be recognised and enforceable in other Member States under the Regulation’s rules on recognition and enforcement. The 2007 Hague Maintenance Protocol entered into force together with the Maintenance Regulation and it also applies to maintenance claimed after 1 July 2013.72 Additionally, the 2007 Hague Child Support Convention and the 1956 New York Maintenance Convention are applicable in Croatia. The 2007 Hague Child Support Convention entered into force in Croatia on 1 August 2014, following the ratification of the Convention by the EU.73 Croatia applies it in relation to Albania, Bosnia and Herzegovina, Brazil, Montenegro, Norway, Turkey, Ukraine, and the USA.74 Croatia became a contracting party of the 1956 New York Convention pursuant to the Notification of Succession on 20 September 1993.75 It is to be assumed that there will be fewer cases conducted under the 1956 New York Maintenance Convention, since the 2007 Hague Child Support Convention has entered into force. Still, among the other states, it is still applicable to the incoming and outgoing requests for recognition and enforcement in relation to Switzerland and neighbouring Serbia.76 In neither case in the EUFam’s data base was the 2007 Hague Child Support Convention or 1956 New York Maintenance Convention applied.

69 Art 281 of the Family Act (n 11). 70 Art 282 of the Family Act (n 11). 71 Art 75(1) of the Maintenance Regulation. 72 Art 22 of the 2007 Hague Maintenance Protocol. 73 See: Council Decision of 9 June 2011 on the approval, on behalf of the European Union, of the Hague Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance [2011] OJ L 192/39. 74 Status table at www.hcch.net/en/instruments/conventions/status-table/?cid=131. 75 Notification of Succession of 8 October 1991 – Official Gazette, International Treaties, No 4/94. 76 United Nations Treaty Collection, Convention on the Recovery Abroad of Maintenance, New York, 20 June 1956, Status as at: 24-03-2018 05:00:35 EDT, treaties.un.org/pages/ViewDetailsIII.aspx?src=TREATY&mtdsg_ no=XX-1&chapter=20&Temp=mtdsg3&clang=_en#3 accessed on 27 Mach 2018.

The Application of the EUFam’s Regulations in Croatia  445

C. Jurisdiction In terms of national law, the general rule of jurisdiction in cross-border matters is part of the Croatian PIL Act,77 which also contains the exception from general rule in proceedings concerning the maintenance of the children.78 As the Maintenance Regulation has a direct effect in national legislatives the courts are obliged to apply its rules, including rules on jurisdiction.79 The Maintenance Regulation provides several grounds of jurisdiction for maintenance application all contained in Article 3.80 In eight cases, courts have not referred to the rules of jurisdiction set out in the Regulation, which they ought to do in the explanation of the decision. This obligation could be derived from the provision of Article 388 of the Croatian Civil Procedure Act, which prescribes the obligation of a judge to refer to the substantive law relevant for delivering a judgment in the reasoning of a judgment. In two cases, the plaintiffs with habitual residence in one of the Member States submitted a maintenance claim before the Croatian court against the defendants with habitual residence in Croatia. In both cases the Croatian court neglected the cross-border element. It failed to apply the Regulation and only applied the national rules resulting in a judgment.81 In three cases the claim was submitted before the Croatian court by the maintenance creditors with habitual residence in Croatia against the defendants living in one of the Member States. In all three cases the Croatian court grounded its jurisdiction in national law instead of on Article 3(b) of the Maintenance Regulation.82 Considering that the rules on jurisdiction apply regardless of whether the defendant has his or her habitual residence in a Member State or not,83 the Croatian court was also obliged to apply the Regulation in the case concerning the claim of the creditors with habitual residence in Croatia against their grandmother with habitual residence in Switzerland. Nevertheless, the Croatian court applied the national law on jurisdiction.84 In two cases, there was no need for the Croatian court to apply the Maintenance Regulation, but only to refer to the Regulation’s jurisdictional ground in relation to the procedural situations incurred. In the first case the plaintiff had withdrawn the claim for

77 Art 46 of the PIL Act (n 9). 78 ibid Art 67. 79 Art 288 of the Consolidated version of the TFEU. Also see Case C-43/71 Politi v Ministero delle finanze [1971] ECR 1039, ECLI:EU:C:1971:122. 80 See L Walker, Maintenance and child support in private international law (Oxford, Hart Publishing, 2015) 53–73. 81 Općinski sud u Šibeniku, 19 October 2016, 38 POb-24/16, CRF20161019; Općinski građanski sud u Koprivnici, 23 May 2017, 9 P Ob 14/17-17, CRF20170523. 82 Općinski sud u Koprivnici, 23 May 2017, 9 POb 14/17-17, CRF20170523; Općinski sud u Puli, 27 July 2017, P Ob 70/16, CRF20170727; Općinski sud u Požegi, 28 August 2017, P Ob-19/2017-11, CRF20170828. 83 Recital 15 of the Maintenance Regulation. See B Hess and S Spancken ‘Setting the Scene – The EU Maintenance Regulation’ in P Beaumont et al (eds) The Recovery of Maintenance in the EU and Worldwide (Oxford, Hart Publishing, 2014) 331–36. 84 Općinski sud u Sisku, Stalna služba u Kutini, 2 August 2017, P Ob-80/17-8, CRF20170802.

446  Mirela Župan, Ines Medić, Paula Poretti, Nataša Lucić and Martina Drventić parental responsibility and maintenance because the children were habitually resident in another Member State;85 the other case concerned the confirmation of the parties’ agreement on parental responsibility and maintenance where the children had their habitual residence in Croatia.86 In both cases the court referred to national law in its reasoning.

i.  Attributed Claims The Maintenance Regulation contains provisions which allow the concentration of jurisdiction for maintenance along with other ancillary claims (status, parental responsibility).87 Once several claims are joined together in the application, careful distinction between the different material scopes of the Regulation has to be performed, and jurisdiction has to be inspected separately for each request of the claim.88 In several cases the court had correctly applied Article 3(d) of the Maintenance Convention, by attributing the jurisdiction for child maintenance proceedings to the jurisdiction for parental responsibility.89 An exception can be found in a case requesting a decision on parental responsibility and maintenance. Initially, the Croatian court had determined that the child was wrongfully removed by the mother from another Member State to Croatia. In line with that, the court had rejected jurisdiction to act upon the parental responsibility claim. It can be assumed that the court attributed the maintenance jurisdiction to the parental responsibility jurisdiction; still, it omitted to call upon the relevant provision of the Maintenance Regulation.90 The decision became the subject of an appeal by the mother. The second-instance court did not recognise the obligation of the first-instance court to take a stand on all parts of the plaintiff ’s claim, including the maintenance claim.91

ii.  Interrelationship of the Rules on National and International Jurisdiction Rules on jurisdiction contained in Article 3(a) and (b) of the Maintenance Regulation determine not only the international jurisdiction, but they also directly affect the national rules of jurisdiction. This can be induced from the Regulation’s wording in the above-mentioned provisions when determining the jurisdiction of ‘the court of the place’, rather than the court of the Member State. This was confirmed by the CJEU ruling in the joined cases Cases C-400/13 and C-408/1 Sanders and Hubert92 where the court interpreted the interplay of the rules on national and international jurisdiction, while 85 Općinski sud u Splitu, 20 April 2015, Pob – 341/14, CRF20150420. 86 Općinski sud u Splitu, 8 January 2016, Pob – 384/14, CRF20160108. 87 Art 3(c) and (d) of the Maintenance Regulation. 88 See: Case C-184/14 A v B (n 42). 89 Županijski sud Pula, 7 April 2015, Gž-269/15-2, CRS20150407; Županijski sud u Puli, 16 September 2014, Gž-1532/14, CRS20140916; Općinski sud u Dubrovniku, 1 October 2014, Gž 1366/14, CRF20141015; Županijski sud u Dubrovniku, 14 october 2015, Gž 1336/14, CRS20151014. 90 Općinski sud u Rijeci, 24 December 2015, P Ob-973/2015-10, CRF20151224. 91 Županijski sud u Zagrebu, 6 September 2016, 80 Gž-Ob-308/16-3, CRS20160906. 92 Joined Cases C-400/13 and C-408/1, Sanders and Huber [2014] ECLI:EU:C:2014:2461.

The Application of the EUFam’s Regulations in Croatia  447 deciding on the matter of national rules on the concentration of jurisdiction.93 The CJEU order emphasised that the Maintenance Regulation restricts Member States’ freedom as regards the determination of the competent court, in so far as territorial jurisdiction must be connected to the place where the creditor is habitually resident.94 Despite the fact that this issue has not been discussed in detail by the academics, or significantly raised by the practitioners, an example of good practice was found in the ruling of the Municipal Civil Court of Zagreb. The court was deciding upon the maintenance claim of the child, represented by the mother, with habitual residence in Austria, against the father with habitual residence in Croatia. The child and the mother had registered their temporary residence in Zagreb, Croatia and the father had registered his residence in Rab, Croatia. The Municipal Court of Zagreb rejected jurisdiction to act upon the maintenance claim and referred to Article 3(a) of the Maintenance Regulation, because it was not the court of the place where the defendant was habitually resident. Also, the court explained that Article 3(b) was not applicable in relation to the request concerned because the child had habitual residence in Austria.95 Upon the mother’s appeal, the County Court of Zagreb overturned the first-instance decision and returned the case for a new trial. The court explained that the Municipal Civil Court of Zagreb was competent to act upon the claim on the basis of Article 3(b) of the Maintenance Regulation, because the child had a registered residence in Zagreb. The Court stated in its decision that Article 51 of the Civil Act determined jurisdiction for maintenance claims on the ground of the plaintiff ’s temporary residence, and that this jurisdiction would lead to a quicker and more economic procedure.96 The Municipal Court of Zagreb was consistent in its ruling and in the renewed trial again issued a decision in which it declined its jurisdiction and had referred to the C-497/10 PPU Mercredi case.97 Upon the second appeal, the County Court of Zagreb confirmed the correct treatment of the Municipal Civil Court of Zagreb.98 Finally, the case file was transferred to the Municipal Court of Rijeka, Permanent Service of Rab, as the court of the place where the defendant was habitually resident.99

iii.  Negative Declaration of the Maintenance Obligation An uncommon request for the issuance of the negative declaratory action on maintenance occurred in one case that was discussed twice before the first instance court, and twice was the subject of appeal. The spouses in the case were both solely Croatian citizens, with Croatian domicile and habitual residence in Austria. The husband submitted a claim for divorce, parental responsibility, and maintenance regarding the child

93 See M Župan and P Poretti, ‘Concentration of jurisdiction in cross-border family matters – child­ abduction at focus’ in M Vinković (ed), New developments in EU labour, equality and human rights law (Osijek, Faculty of Law Osijek, 2015) 341–59. 94 Paras 31 and 37 of the Cases C-400/13 and C-408/1 Sanders and Huber (n 92). 95 Općinski građanski sud u Zagrebu, 12 January 2015, P2-2041/14-2. 96 Županijski sud u Zagrebu, 3 March 2015, 7 GL2- 8lll5-2. 97 Općinski građanski sud u Zagrebu, 18 June 2015, 143-P Ob-323/15-6. 98 Županijski sud u Zagrebu, 11 October 2016, 7 GZ Ob-l78ll5-2. 99 Općinski građanski sud u Zagrebu, 6 April 2017, 143-P Ob-153/2017-3.

448  Mirela Župan, Ines Medić, Paula Poretti, Nataša Lucić and Martina Drventić before the Municipal Court in Croatia. He also asked the court to issue a negative declaratory judgment that he was not obliged to pay maintenance to the wife. While the Municipal Court, deciding for the first time, accepted its jurisdiction to decide on the claim for a negative declaration on maintenance, the County Court returned the part of the judgment relating to maintenance to the Municipal Court for a new decision. This was explained by the fact that the Municipal Court grounded its jurisdiction to decide on spousal maintenance on the Brussels IIa Regulation instead of on the Maintenance Regulation.100 In the second trial, the Municipal Court declined jurisdiction over spousal maintenance. Upon the plaintiff ’s appeal, the County Court emphasised that the respondent had not asked for support, but the prosecutor had required a finding that the defendant was not entitled to maintenance. The County Court found that the Municipal Court decision declining jurisdiction to decide on maintenance of a spouse was well-founded.101 The grounds for such a decision were not included in the reasoning of the judgment. The negative declaratory actions (so-called ‘torpedo actions’) are frequent under the matters covered with the Brussels Ia Regulation and interpretation of this matter can be found in the CJEU ruling in the Case C-133/11 Folien Fischer and Fofitec.102 Subsequently, when the negative declaration of maintenance occurred before the CJEU in Case C-467/16 Schlömp,103 the lis pendens issue under the 2007 Lugano Convention had not been questioned but rather accepted as a common type of claim.

V.  Applicable Law in Cross-Border Family Matters Despite the obligatory nature of choice of law in the Croatian system, the applicable law rules are rarely applied.104 In the majority of cases, the EUFam’s court instantly applied domestic substantive law.105 Cases with problems applying relevant legal sources of evidence are of a different nature, such as interpreting the regime, as well as applying a foreign law directed by the rule.106 As well as the Maintenance Regulation’s rules on jurisdiction, the rules on applicable law contained in the 2007 Hague Maintenance Protocol will always apply in a Contracting State, regardless of whether it designates a law in a non-Contracting State.107 In only one case the court referred to the 2007 Hague Maintenance Protocol, 100 Županijski sud u Puli, 16 September 2014, Gž-1532/14, CRS20140916. 101 Županijski sud u Puli, 7 April 2015, Gž-269/15-2, CRS20150407. 102 Case C-133/11 Folien Fischer AG and Fofitec AG v Ritrama SpA [2012] ECLI:EU:C:2012:664. 103 Case C-467/16 Schlömp [2017] ECLI:EU:C:2017:993. 104 M Župan, ʽForeign Law before Croatian Authorities – at the Cross-roads?ʼ in Y Nishitani (ed), ­Application and proof of foreign law (Springer, 2017) 93–111. 105 See, eg: Općinski sud u Splitu, Pob – 74/14, 8 January 2016, CRF20160108; Općinski sud u Splitu, 5 April 2016, R1-Ob-375/15, CRF20160405; Općinski sud u Sisku, 26 August 2016, 4-R1-Ob-260/16, CRF20160826. 106 In the case of Županijski sud u Dubrovniku, 14 October 2015, Gž 1336/14, CRS20151014, the Appellate Court misunderstood the scope of application of the 1996 Hague Convention on the Protection of Children in relation to alteration of visitation rights. In the same case the applicable law for visitation rights as well as the applicable law for maintenance was directed to substantive law of Bosnia and Herzegovina, but it was not apostrophised by the court. 107 See Župan, ‘Innovations of the 2007 Hague Maintenance Protocol’ in P Beaumont et al (n 83) 311–332.

The Application of the EUFam’s Regulations in Croatia  449 and the case included a third country. The obligation of applying the rules on applicable law contained in the 2007 Hague Maintenance Protocol was recognised by the secondinstance court, and instructed the first-instance court to apply the EU instruments, including the 2007 Hague Maintenance Protocol.108 Still, there is the example where the second-instance court returned the case to a first instance court for a new trial because of false grounds of jurisdiction for cross-border maintenance. The same court did not instruct the first-instance court that it is also necessary to apply the correct rules on applicable law.109

VI.  Application of the Succession Regime A. Introduction The Succession Regulation unifies rules on jurisdiction, conflicts of law, and recognition of foreign judgments. Its application in matters of cross-border succession requires abandonment of traditional approaches towards dealing with succession which were embodied in the autonomous private international succession law of Member States, including Croatia. The Implementing Act has been rendered as well. From the procedural law perspective, the most relevant provisions of the Implementing Act on the application of the Succession Regulation are: provisions on local jurisdiction, the allocation of competence within the Croatian, judiciary (between the court and notaries), and on the conduct of the proceedings before Croatian notaries and courts. Although the application of unified rules contained in the Succession Regulation enhances predictability and legal certainty, differences in the national legal regimes may still create obstacles to its functioning in the Member States. Since the Succession Regulation is applicable in Member States in matters of cross-border succession from 17 August 2015, a case study conducted in this part of the paper provides an insight into problems connected to its application in Croatian legal practice.

B.  Jurisdiction in Matters of Succession within the Member State of Croatia According to the Act on the application of the Succession Regulation, Croatian authorities with competence in matters of succession are determined under the Succession Act110 (arg ex Article 3(1) Act on the Application of the Succession Regulation).111

108 Županijski sud u Dubrovniku, 14 October 2015, Gž 1336/14, CRS20151014. 109 Općinski sud u Rijeci, 24 December 2015, P Ob-973/2015-10, CRF20151224. 110 The Succession Act (Zakon o nasljeđivanju) Official Gazette, No 48/03, 163/03, 35/05, 127/13, 33/15. 111 Although the Succession Regulation applies directly in the Croatian legal system, in order to facilitate its practical application, some provisions have been adopted. They are contained in the Act on the application on the Succession Regulation. See P Poretti, ‘Nadležnost, nadležna tijela i postupci prema Uredbi (EU) br. 650/2012 o nasljeđivanju’ (2016) 37 Zbornik Pravnog fakulteta Sveučilišta u Rijeci 561, 563.

450  Mirela Župan, Ines Medić, Paula Poretti, Nataša Lucić and Martina Drventić In accordance with the Succession Act, public notaries as judicial commissioners (acting pursuant to a delegation of power by a judicial authority) will act in succession matters pursuant to the rules of non-contentious proceedings (arg ex Article 11 Act on the Application of the Succession Regulation in connection with Article 175 and 176 Succession Act). Under the Succession Act, the proceedings are opened by a court on its own motion (ex officio) after the court receives a death certificate, an excerpt from the death register, or other similar instrument (arg ex Article 210 Succession Act). However, the Succession Regulation regime is more accommodating towards disputes initiated at the request of one of the parties and only indirectly takes into account modalities under which succession proceedings are non-contentious proceedings initiated ex officio. This is particularly evident with regard to the commencement of proceedings, that is defining the moment when a court in a Member State should be deemed to be seised in succession proceedings under Article 14 of the Succession Regulation. As the legal literature explains, non-contentious proceedings are commenced when a person with an interest in obtaining some form of declaration applies to a court. This scenario may easily fall under the rule contemplated under Article 14(a) of the Succession Regulation, insofar as it refers to the moment when such an application is lodged with the court.112 At the same time, the legal literature admits that neither of the rules under Article 14(a) or (b) could be adapted to the different case of proceedings commenced ex officio, as may be contemplated in succession matters under the law of some Member States. In such proceedings, there is by definition, no initiative by any of the parties or persons having an interest in the succession.113 However, incompatibility with Article 14 of the Succession Regulation on seising of a court is just one of the problems detected in the context of application of a Croatian internal rule according to which succession proceedings are commenced ex officio.

C.  Lack of Definition – Cross-Border Elements Since all courts and other authorities of Member States have to apply the Succession Regulation to matters of cross-border succession, the first step in its application is establishment of the cross-border element in the matter. The Croatian Succession Act provides for a possibility of the court or a public notary seised to decline jurisdiction in cases in which a court or an authority of another State has jurisdiction in the matter (arg ex Article 211(2) Succession Act). Still, in Croatian legal practice, after receiving the death certificate, instead of establishing whether a court of a different Member State has jurisdiction, the court usually delivers the file to the public notary who acts as a judicial commissioner in the matter. The public notary then proceeds to establish the cross-border element and its jurisdiction in the matter. This has proven to be a challenging practice in many cases. Since the Succession Regulation avoids defining the international nature of succession, it leaves public notaries without guidelines on how to

112 AL Calvo Caravaca, A Davi and HP Mansel (eds), The EU Succession Regulation: A Commentary (Cambridge, Cambridge University Press, 2016) 238. 113 ibid 239.

The Application of the EUFam’s Regulations in Croatia  451 establish the cross-border element in the matter.114 The four elements suggested in the legal literature could prove as useful. These are the court or authority with competence in the matter, the deceased, the heirs, and the property of the estate.115 The lack of a definition of the international nature of succession in the Succession Regulation can be attributed to the difficulties encountered in defining it.116 Commonly in proceedings commenced ex officio, the heirs (especially if they reside abroad) remain passive. Regardless of the efforts of the public notary it is impossible to establish all relevant information such as the states in which the property of the estate is situated, Member States of residence of the heirs, or the habitual residence of the deceased. Hence, in situations when such a scenario arises, usually only nationality and permanent residence of the deceased is specified, and public notaries can only rely upon information on the heirs and the property situated in Croatia. It is due to these circumstances that in some cases Croatian public notaries have difficulties in recognising the cross-border element in the succession matter, and therefore, incorrectly conclude that proceedings should be conducted under national law.117 The legal literature provides little guidance by mentioning habitual residence of the deceased persons or the ownership of property in a given country, or nationality as typical elements capable of establishing the international nature of the succession. Still, one has to note that these elements may vary over time.118

D.  Jurisdiction in Succession Matters Several other points arise regarding the previously mentioned ex officio commencement of proceedings. One point concerns the difficulties of public notaries in establishing jurisdiction under the Succession Regulation. A comparative overview of succession proceedings conducted in Croatia and other Member States revealed a lack of awareness that, however cumbersome it is to verify the habitual residence of the deceased, the Courts of the Member States are obliged to do so (arg ex Recital 25 Succession Regulation preamble).119 In many cases due to uncertainty regarding the establishment of the last

114 ibid 25. 115 Poretti (n 111) 565. See also K Drličková and I Rohová (eds), ‘Habitual Residence as a Single Connecting Factor Under the Succession Regulation’, in Scientific Cooperations Workshops on Social Sciences (Ankara, Scientific Cooperations, 2015) 374. 116 ibid 26. 117 In the case at hand, succession proceedings were opened by a public notary of its own motion, upon receiving the death certificate from the Municipal Court of Vukovar, Permanent Service of Županja. The public notary conducted proceedings on the basis of the available information, the fact that the deceased died in Germany, where he was presumably living with his wife (the sole heir) and that there was immovable property in Croatia which belonged to the estate of the deceased. In the course of the proceedings, the public notary attempted to contact the wife of the deceased, but she remained passive. Although the public notary did not establish the relevant facts properly, he continued with the proceedings. He assumed jurisdiction, although the last habitual residence of the deceased was probably in Germany. Perhaps there was even lis pendens in the case, but without active participation of the wife of the deceased as the sole heir it was impossible to verify it. Općinski sud u Vukovaru, Stalna služba u Županji, No O-2543/15. 118 See Calvo Caravaca, Davi and Mansel (n 112) 27. 119 ibid 132–33.

452  Mirela Župan, Ines Medić, Paula Poretti, Nataša Lucić and Martina Drventić habitual residence of the deceased, courts or public notaries justify their competence to conduct proceedings based on internal rules instead. In regard to Croatian practice, the difficulties stem from the previous Croatian private international succession law regulation, according to which Croatian courts had exclusive jurisdiction to rule over immovable properties of Croatian nationals (arg ex Article 71(1) PIL). For example, if the case concerns a third-country national, who at the time of death is not related by personal connecting factors such as domicile or citizenship to any Member State but had the last habitual residence in a Member State, public notaries fail to recognise that prerequisites are met for the succession to be considered under the Succession Regulation regime. In such situations, instead of focusing on the last habitual residence as a connecting factor for establishing jurisdiction, nationality and the place where the property is situated continue to be considered as relevant factors in Croatian practice.120 Also, in several cases in which Croatian public notaries had jurisdiction as authorities of a Member State of the last habitual residence of the deceased under Article 4 of the Succession Regulation, upon commencement of proceedings it was established that courts and authorities of other Member States incorrectly declared themselves competent, but only heard a part of the succession matter which concerned immovable and movable property situated in that Member State. Such a situation usually becomes evident when Croatian public notaries open succession proceedings and the heirs declare before a notary that the court of another Member State in which a part of the estate is situated already conducted the proceedings. This is contrary to the unitary system established under the Succession Regulation, according to which Croatian courts and public notaries have jurisdiction to hear the entire succession matter, regardless of the movable or immovable nature of the assets comprising the inheritance, or of their location.121 Cases were also recorded in Croatian practice in which the public notary assumed jurisdiction under Article 4 of the Succession Regulation, but confined the hearing to a part of the succession matter which concerned immovable and movable property situated in Croatia. For example, in one of these cases, where the majority of assets were situated in Croatia, a Croatian public notary heard the case and decided on the succession. In relation to the movable property consisting of monetary funds placed in a bank account of a bank situated in another Member State, the Croatian public notary advised the heirs to initiate proceedings abroad. Although the heirs initiated proceedings abroad, they were instructed to initiate proceedings before a Croatian public notary and request the competent authority to issue a European

120 For example, in the case of the deceased third-country national who died in another Member State, but owned immovable property in Croatia. In establishing whether it had competence in the matter, the Croatian public notary only took into account the fact that there was immovable property pertaining to the estate of the deceased situated in Croatia. The public notary failed to recognise that the habitual residence of the deceased was in a Member State, where the deceased died and that under Art 4 of the Succession Regulation authorities in that Member State have jurisdiction in the matter. Even if the deceased had chosen the law to govern his succession under Art 5(1) in connection to Art 22 of the Succession Regulation, Croatian law could not have been chosen because the deceased was a third-country national. Hence, the choice-of-court agreement under which Croatian court would have exclusive jurisdiction in the succession matter could not be made by the parties concerned. 121 See Calvo Caravaca, Davi and Mansel (n 112) 134.

The Application of the EUFam’s Regulations in Croatia  453 Certificate of Succession (ECS). This resulted in the need to reopen the proceedings in Croatia in order for the public notary to decide on the monetary funds. Such a practice is unwelcome because it is contrary to the Succession Regulation regime and imposes an unjustified restriction on its functioning. In a recently rendered judgment the appellate court in Croatia declined jurisdiction, arguing that the habitual residence of the deceased was not in Croatia, but in Germany. As to the appellate allegations, the Municipal Court misinterpreted paragraphs 23 and 24 of the preamble to the Regulation. The appellants argued that the court wrongly established that the deceased had a habitual residence in Germany, because he had spent his entire life in Croatia and only had a formally registered residence in Germany in order to claim certain social subsidies. The deceased died in Germany during a short-term departure from Croatia in the course of a visit to his son. The appellants argued that the first-instance court should have put more effort in establishing the habitual residence, as well as ordered a hearing of the proponents or the neighbours. However, the appellate court upheld the decision, arguing that besides the fact that the official documents proved that the deceased died in Germany, that was the place he had married, and where the identity card of the deceased was issued. According to the opinion of the second-instance court, the habitual residence of the deceased was in Germany, where the deceased had a more permanent presence and his centre of family and social life.122 Obviously, proper application of the Succession Regulation to cases which will arise in the coming years requires that the notion of habitual residence is clear, certain and easily understandable for legal practitioners. At the same time, experience confirms the conclusion of the legal theory that the concept of habitual residence is still vague and indefinite.123 Namely, a discussion with Croatian legal practitioners revealed that rules on jurisdiction in cross-border succession cases are not familiar to all of them.124 Academics suggested that it would be useful to consult the Recitals 13 and 14 of the Succession Regulation while deciding on the habitual residence. Additionally, academics gave several guidelines to the judges and public notaries indicating the specific life situations concerning determination of habitual residence in succession cases. For example, there are returnees to the Republic of Croatia whi have been living most of their lifetime abroad for economic reasons; there are cases of accommodation in cheaper retirement homes abroad; and there are also cases of people living one half of the year in one state and the other half in another state (such as for vacation). Furthermore, sometimes even five years of residing in a Member State is not a condition for acquiring habitual residence. Social integration and fluency in the language are relevant. However, judges and public notaries are still hesitant to interpret the legal concept of habitual residence in

122 Županijski sud u Šibeniku, 13 December 2017, Gž 465/2016-2. 123 See Calvo Caravaca, Davi and Mansel (n 112) 138. See also A Dutta, ‘Novo međunarodno nasljedno pravo Evropske unije – prvo čitanje Uredbe o nasljednom pravu’ (2013) 9 Nova pravna revija 10. M Kränzle, Heimat als Rechtsbegriff? Eine Untersuchung zu Domicile und gewöhnlichem Aufenthalt im Lichte der EU Erbrechtsverordnung (Tübingen, Mohr Siebeck, 2014) 271. Poretti (n 111) 567. 124 The discussion was lead during an event prepared in the framework of EUFam’s project. See M Župan and M Drventić, Report on the Croatian Good Practices – Croatian Exchange Seminar Osijek, 13–14 October 2016, www.eufams.unimi.it/wp-content/uploads/2017/01/EUFAMS-Croatian-report-on-good-practices.pdf.

454  Mirela Župan, Ines Medić, Paula Poretti, Nataša Lucić and Martina Drventić practice, especially while the evidence-taking procedure precedes the succession procedure. Academics and judges are agreed on the possible solution in these cases – to ask the heirs for the memorial amendment with respect to additional information, in order to facilitate the determination of habitual residence. But it must be noted that this is possible only in situations where the heirs actively participate in the proceedings.125 The approach advocated by Croatian academics is in line with two theoretical proposals. The first proposal is based on consistency in the EU legal system. The impact of the case law relating to the framework texts of the EU which also use the notion of habitual residence should be expanded to matters of succession. Also, the second proposal states that the notion of habitual residence should be based upon the recitals set out in the preamble to the Succession Regulation.126 But it should be kept in mind that determining the last habitual residence in order to determine the jurisdiction on the basis of the CJEU case law or the recitals of the Succession Regulation is still a foreign concept for Croatian and legal practitioners in other Member States. It will take time and additional training for them to adjust to the requirements imposed by the Succession Regulation. In regard to establishing jurisdiction under the Succession Regulation the issue of procedural manoeuvring or ‘forum shopping’ may also arise. There are various reasons for attempts to select jurisdiction from amongst various possible alternatives and mostly they refer to technical advantages of a substantive or procedural nature which lead to success in the proceedings.127 Also, a restrictive practice of a certain Member State court or an authority may be the reason for an attempt of the parties to the proceedings to circumvent jurisdiction of that court or authority. Such a case occurred in Croatian practice when a Slovenian court with jurisdiction in the succession matter refused acceptance of property registers for a deceased person’s immovable property in Croatia. An attempt was then made for proceedings to be initiated before a Croatian notary.128

E.  The European Certificate of Succession The Succession Regulation creates a European Certificate of Succession in order for the heirs, legatees, executors of wills or administrators of the estate to be able to assert their rights and powers and to give evidence of their status in another Member State. The possibility to apply for an ECS raised several questions in Croatian legal practice. Basic questions connected to the issuance of an ECS arose, such as who is entitled to apply

125 ibid 6. 126 See Calvo Caravaca, Davi and Mansel (n 112) 140. 127 ibid 143. 128 In the case in question, an attempt was made by a lawyer of the heirs to initiate proceedings before a public notary in Croatia. However, the Croatian public notary established that the last habitual residence of the deceased was in Republic of Slovenia where proceedings were already pending. The reason why the lawyer was interested in initiating proceedings before a Croatian public notary lies in the fact that the deceased only had property registers for her immovable property, instead of title deeds. Since the Slovenian court would not decide on the basis of property registers, the lawyer considered it to be more appropriate to conduct proceedings before a Croatian public notary that would accept them.

The Application of the EUFam’s Regulations in Croatia  455 for the ECS, who has the competence to issue it, and what precisely the ECS should contain. However, the main problem seems to be whether the issuing authority is entitled to issue a single ECS or a separate ECS concerning each applicant. There were also questions in regard to who should be considered to be a beneficiary and which details of other ­possible beneficiaries the applicant for the ECS obligated to give according to Article 65(3)(e) of the Succession Regulation. Some public notaries expressed concerns that there will be impediments in accepting the ECS as a valid document for the recording of succession of property in the relevant register in Croatia and other Member States. However, it seems that the use of the ECS in order to assert their rights, including the recording of succession property, did not create major difficulties for heirs in Croatian practice.129

VII.  Interpretative Methods in Family Matters – Open Connecting Factors and Lis Pendens If we define the open connecting factors as those that need to be created by the judiciary, in each and every case, habitual residence is certainly the most represented of European and international instruments. In the majority of Croatian cases, the judgment contains no elaboration of the circumstances of a case which led the court to conclude that habitual residence would be in Croatia.130 The necessity of full understanding and the euro autonomous interpretation of the habitual residence criteria were underlined as a particular challenge for the adaptation of Croatian legal practice at the Croatian National Seminar held in the framework of the EUFam’s Project.131 National courts have to rely upon the CJEU’s interpretation,132 even if this implies that the ‘habitual residence’ has to be determined on the basis of the facts of each case.133 Because the court did not recognise the cross-border element in eight cases on maintenance, the habitual residence of the child was not determined in them. In other cases, no examples of wrong determination were found. Still, the court’s explanations in relation to the child’s habitual residence were rather scarce.134 The court discussed the

129 An example of good practice in Croatia (presented at the final Conference on the Succession Regulation organised by the CNUE and the Italian Notary Chamber on 24 February 2017 in Rome) concerns the application for registration of immovable property in the Croatian public register of immovable property submitted to the Municipal Court of Pula by an heir of an Italian national. The heir submitted an ECS issued by an Italian notary in succession proceedings conducted in Italy under the Succession Regulation. After the Croatian notary received the ECS translated into Croatian, compiled the minutes containing information on the facts of the case at hand, and the proceedings were conducted before an Italian notary, the immovable property was registered in the public register at the Municipal Court of Pula. D Krajcar, A Report on the final Conference on the Succession Regulation in the framework of the project ‘Europe for notaries – notaries for Europe’ on 24 February 2017 in Rome, Italy (submitted to Croatian Notaries Chamber). 130 See, eg: Općinski sud Buje, 12 February 2014, P-17/2014, CRF20140212. 131 Župan and Drventić (n 124). 132 Case C-523/07 A [2009] ECLI:EU:C:2009:225; Case C-497/10 PPU Barbara Mercredi v Richard Chaffe, [2010] ECLI:EU:C:2010:829; Case C-376/14 PPU C v M [2014] ECLI:EU:C:2014:2268. 133 See: Kruger (n 29) 741–753. 134 Županijski sud u Dubrovniku, 14 October 2015, Gž 1336/14, CRS20151014.

456  Mirela Župan, Ines Medić, Paula Poretti, Nataša Lucić and Martina Drventić habitual residence of the children, in a case where they were wrongfully removed by the mother from Germany to Croatia. Upon the request for the issuance of a judgment on parental responsibility and maintenance, in declining its jurisdiction, the court gave the explanation that the habitual residence of the children was in Germany because they were born there and had attended day care there.135 Among several cases relating to lis pendens, several challenges appeared for the Croatian courts. In one case, the Croatian court undertook efforts to ensure the application of the Brussels IIa Regulation and took evidence abroad to make sure that the procedure was first initiated in Germany. However, the court superfluously made conclusions to the proper jurisdiction of the German court due to the habitual residence of the parties there. If the procedure is pending in another Member State and that court was first seised, there is no need to check if jurisdiction of that court is founded – any review of jurisdiction is forbidden.136 Case law equally demonstrated other issues relating to the lis pendens rule of the Brussels IIa Regulation. Questions have arisen on the matter of establishing whether an ongoing process is taking place abroad. It has been highlighted that the lis pendens civil procedure regime is perceived differently throughout the Member States: either it is an ex officio obligation for the court to establish the moment of seisure of both courts, or it is an objection raised by the party and proved by the party.137 In Croatian circumstances, the CPA places the burden on the party raising such an objection. Such an attitude requires that the party must submit proof of a pending procedure abroad, in the form of a certified translation of the public document (Article 232(2) of the Civil Procedure Act).138 It is rather symptomatic that in none of the cases approached did the court make a record of usage of the EJN-civil as an effective tool in discovering relevant data. It is particularly evident in the case where the Croatian court (in 2014) declined jurisdiction in favour of the court first seised (in 2008). A mere ruling does not reveal if the Croatian court undertook any effort to establish judicial communications with the Italian Court of Gorizia, as it had been an extremely long period of time since the claim was launched before the Italian court.139 Among the problems detected in the application of the Succession Regulation in Croatia is the lack of synchronisation of the internal rule which regulates ex officio commencement of succession proceedings with the lis pendens rule in Article 17 of the Succession Regulation. The problems occur in many cases initiated ex officio before Croatian public notaries because the heirs remain passive and the public notaries have difficulties in establishing whether the habitual residence of the deceased was in Croatia or in another Member State.140

135 Općinski sud u Rijeci, 24 December 2015, P Ob-973/2015-10, CRF20151224; Županijski sud Pula, 7 April 2015, Gž-269/15-2, CRS20150407; Županijski sud u Puli, Gž-1532/14, 16 September 2014, CRS20140916. 136 Art 24, as well as CJEU ruling in Case C-455/15 PPU P [2015] ECLI:EU:C:2015:763. For more details see: Općinski sud Osijek, P2-614/2013, 23 December 2013, CRF20131223. 137 M Cappelletti and B Kaplan, International Encyclopedia of Comparative Law (Brill, 1995) 115. 138 As confirmed by the Appellate court decision in Općinski sud u Rijeci, 26 September 2014, P-1638/2014, CRF20140926. 139 See, eg: Općinski sud u Rijeci, 26 September 2014, P-1638/2014, CRF20140926. 140 For example, proceedings were initiated ex officio before a public notary in Croatia after the death of a Croatian national who had been living in Germany for the past 30 years. The entirety of the social, business,

The Application of the EUFam’s Regulations in Croatia  457

VIII.  Instead of a Conclusion The objective of the EUFam’s research was to identify general and specific problems in the cross-border family and succession regime implementation process in the practice of selected Member States. At the time this chapter was written the EU regulatory scheme had been in application in Croatia for five years. Specific challenges, problems, and trends, as well as room for potential improvement of its application, are highlighted through this report. General comments in relation to divorces relate to unsystematic demarcation of European, international, and internal legal sources, attitudes towards the direct application of domestic substantive law to ‘foreign domestic cases’ and the lack of interpretation in relation to the facts used to determine the habitual residence of spouses. These comments would be equally valid for cases of divorces with children. However, the number of problematic issues in application of the EU regulatory scheme in such complex divorces with minors is much higher. Courts are keen to decide upon parental responsibly matters over a child with habitual residence abroad. Prorogation of jurisdiction is not employed, or not employed properly. Due to the lack of proper implementing rules, the application of the transfer of jurisdiction raises practical and legal doubts. The general comment on maintenance matters that courts are not applying the international rules on jurisdiction and applicable law has been confirmed. In the relation to the maintenance cases, in eight of 14 cases the court failed to recognise the cross-border element and applied the national law. All cases where the court applied the international rules considered the application of Article 3 of the Maintenance Regulation. Examples of good practice have been found in relation to the jurisdiction for attributed claim and in relation to the interplay of the rules of national and international jurisdiction. Some improvements are necessary in regard to the interpretation of the concept of habitual residence. The general conclusion regarding succession matters relates to difficulties encountered by the legal practitioners in Croatia in identifying and applying the criteria of habitual residence of the deceased. Also, the fact that there is no adequate differentiation of contentious and non-contentious proceedings in which the matters of succession are resolved in different Member States creates obstacles to the proper application of the Succession Regulation. Finally, although the establishment of the ECS was aimed at facilitating recording of property in the registers of the Member States, its nonmandatory nature undermines the effectiveness of its usage. Despite the mentioned imperfections, the application of the Succession Regulation in Croatian practice so far has been without major difficulties. Hence, it is to be hoped that the highlighted barriers

and emotional life of the deceased had been in Germany, where the death occurred on 9 January 2017. The proceedings were initiated in Croatia on the basis of a death certificate containing the address of the deceased’s domicile (which was in fact the address of the deceased’s parents). However, the public notary correctly established that the last habitual residence of the deceased was in Germany and declared its lack of jurisdiction. In the case in question, the public notary was concerned whether the ex officio initiation of proceedings in Croatia created a situation of lis pendens. On the basis of information provided by the mother of the deceased, the public notary confirmed that at the time, proceedings were not initiated in Germany and there was no lis pendens in the matter.

458  Mirela Župan, Ines Medić, Paula Poretti, Nataša Lucić and Martina Drventić to the proper functioning of the Succession Regulation regime will be removed in the CJEU jurisprudence and the future legislative interventions. Some problems highlighted by this research are symptomatic in the general Europe-wide context. Hence, conclusions rendered here are in line with conclusions reached on other respectable scientific projects in the civil justice area.141 Some of the problems are truly unique to Croatian circumstances, deriving from specific substantive and procedural national law. This research project evidences many examples of the proper application of the regulatory scheme. However, it also indicates the lack of synchrony among international/European sources with national substantive and procedural law. In a complex milieu of interconnected universal and regional legal instruments, a clear understanding of the material which falls within its domain, as well as of the demarcation of the Regulation from other legal sources, becomes crucial for a proper application of the Regulation. The application of the EU and internationally adopted cross-border family and successions regulatory scheme is inseparable from domestic legislation. However, demarcation among multiple legal sources is often set falsely. As indicated previously, the Croatian PIL Act of 1982 is sometimes applied by the courts instead of international and European legal sources. Regrettably, often the national substantive and national procedural law is applied directly. The cross-border element of the case is thus ignored, and the cross-border case is treated as an internal case. A common feature of the collected Croatian cross-border family and succession related cases is the reference to the notion of domicile as the main part of the memorial of the judgment, while concurrently the mention of the habitual residence is systematically omitted. Although domicile is not a relevant criterion pursuant to the Regulation, national procedural law142 is obviously employed by the adjudicating authority. It was also symptomatic that on several occasions proper application of the regulations by the municipal courts does not find adequate support in the appellate instance. References to valuable interpretations contained in the judgments of the CJEU are rare. This may be due to the fact that judgments predating Croatian EU accession are not translated into the Croatian language. Among many valuable HCCH publications, such as explanatory reports to the Conventions, guides to the application, etc, almost none are translated into Croatian. The recently adopted Croatian PIL Act of 2017 would certainly solve the ambiguity relating to the legal sources. The PIL Act now clearly directs towards the application of relevant regulations and conventions.143 The forthcoming implementation of an act on

In the second case, in the course of the proceedings initiated ex officio, a public notary in Croatia determined that the last habitual residence of the deceased was in Germany, and that proceedings are already pending before a German court. In establishing lis pendens, the public notary relied on a letter presented by a legal heir in which a public notary conducting proceedings in Germany requested an approval by the heirs regarding the division of the estate in a certain manner. Having established that the German public notary as the court first seised continued with the case, the Croatian public notary proceeded in accordance to Art 17 of the Succession Regulation and declined jurisdiction in favour of the public notary first seised. 141 P Beaumont et al ʽCross-border Litigation in Europe: Some Theoretical Issues and Some Practical Challenges’ in P Beaumont and others (n 18) 819 ff. 142 Art 106(2) of the Civil Procedure Act (n 12). 143 M Župan ʽNovelties of the Croatian 2017 Private International Law Act’ 4 Hrvatska pravna revija 1.

The Application of the EUFam’s Regulations in Croatia  459 parental child abductions would influence the progressive development of adjudication in this area as well. Nomination of a Croatian judge to the EJN-civil took place recently, and a Croatian nomination to the International Hague Network of Judges is expected. The international family and succession regime is still in its infancy in Croatian practice. EUFam’s case law revealed the benefits and shortcomings of its early application. Both serve as useful lessons for the future proper application of the regime. The shortcomings detected here may usefully guide the Justice Ministry and judicial training facilities with topics deserving more attention. The EUFam’s research and database is thus a valuable point of departure for improved implementation and uniform interpretation of the EU acquis in Croatia.

460

31 The Application of the EUFam’s Regulations in the Czech Republic LENKA VÁLKOVÁ

I. Introduction A.  The EUFam’s Database and the Czech Practice In the first place, it is necessary to underline the reasons leading to the inclusion of the Czech Republic among the Member States involved in the EUFam’s project at a later stage. The Member States, in particular Bulgaria, Croatia, France, Germany, Greece, Italy and Spain, had been primarily selected because: i) they represent examples of typical both intra-EU and extra-EU migratory movements (such as Germany, Greece, France, Italy and Spain); or ii) they provide for a good testing sample for assessing the impact of the EU family rules on cross-border couples due to their recent accession to the EU (the EU Regulations in family and succession matters became applicable in such Member States later on – in Bulgaria since 1 January 2007 and Croatia since 1 July 2013). In the course of the project it turned out to be useful to enlarge the geographical scope of this project in order to obtain the additional comparative data. Therefore, the Member States, which are still relatively young, but which started to apply the EU Regulations in family and succession matters since they entered into force (in contrast with Bulgaria and Croatia), have been included in the project. It was previously reported in these Member States that the national courts faced the obstacles related to the inadequate general access to EU legislation due prevalently to the unavailability of the translations of older legal instruments provided by the Court of Justice of the European Union (CJEU),1 for example, interpretations to the Brussels Convention or the Brussels I Regulation. On the other hand, translations of the Brussels IIa Regulation, applicable since 2005 (although based partially on the Brussels II Convention and the Brussels II Regulation) and the Maintenance Regulation applicable as from 2010 (although partially based on Articles 2 and 5 of the Brussels I Regulation) enabled the national judicial practice of the young 1 In this respect, see M Pauknerová ‘The Impact and Application of the Brussels II bis Regulation in the Czech Republic’ in K Boele-Woelki and C González Beilfuss (eds), Brussels II bis: Its Impact and Application in the Member States (Intersentia, 2007) 71.

462  Lenka Válková Member States to develop together with the old Member States by virtue of its gradual interpretation provided by the CJEU, with versions available in the languages of each Member State, since their beginning. Therefore, the best practices of the ‘old’ Member States together with those of the ‘young’ Member States represent valuable comparative data concerning their initial experience. Hence, the Czech Republic and Slovakia proved to be perfect additional target Member States for the EUFam’s Project.2 Furthermore, the extension of the analysis involving these two Member States facilitated the comparison of the practices of South-West countries (France, Germany, Greece, Italy and Spain) and of Central-East countries (Bulgaria, Croatia, Czech Republic and Slovakia) due to the geographical distribution of the project’s Member States. The research and compilation of Czech case law for the EUFam’s Project was carried out by the University of Milan. More than 50 Czech judgments have been classified, summarised and included in the EUFam’s database. The case law was gathered through the public and private databases available in the Czech Republic. Some judgments were provided by the Czech national courts upon the previous request, especially judgments of second instance, which are not usually freely accessible in the public databases.3 Out of the 53 Czech judgments, 42 were issued by courts of second instance (79%), eight by the Supreme Court (15%) and three by the Constitutional Court (6%). Still, many judgments, especially judgments of courts of first instance, remain still largely inaccessible to the public. The collected judgments may be classified by their subject matter: six divorce judgments (11%), 14 maintenance judgments (24%), 28 judgments on parental responsibility matters (48%) and 10 child abduction judgments (17%). The Brussels IIa Regulation was applied in a majority of the cases (in 44 judgments, or 64%), the Maintenance Regulation was referred in eight judgments (25%), the 2007 Hague Maintenance Protocol in only two cases (11%) (the application of the Succession Regulation and 2007 Hague Child Support Convention was not observed at all). However, it must be borne in mind that the cross-border family proceedings often require the combined application of the relevant legal instruments in practice.

B.  Brief Remarks on the Czech Legal System Concerning International Family and Succession Law The Czech Republic entered the European Union on 1 May 2004; since then Czech courts have been required to apply the EU Regulations preferentially. The Czech Republic is also a Contracting Party to the numerous bilateral agreements4 and to 2 It was noted that in the Czech Republic the courts most frequently decided a case with a foreign element on issues regarding the international family law, see Pauknerová (n 1) 70. 3 The limited availability of judgments of Czech courts in this area may be seen as a problem, in this regard see Pauknerová (n 1) 70. 4 The Czech Republic concluded agreements on legal assistance governing jurisdiction and applicable law in family matters also with third states, for example with Cuba, DPRK, Russia, Ukraine, Uzbekistan, Vietnam, etc. On the list of all bilateral agreements see www.mzv.cz/public/4f/37/6/2714699_1860857_Smlouvy_leden_2018. pdf. The bilateral agreements on legal assistance operate mainly with the jurisdictional grounds or connecting factors based on the citizenship or habitual residence. See in this regard also Z Kučera, M Pauknerová, M Růžička, Mezinárodní právo soukromé (Plzeň/Brno, Aleš Čeněk/Doplněk, 2015) 330–32.

The Application of the EUFam’s Regulations in the Czech Republic  463 the Hague Conventions governing family matters5 (the 2007 Hague Child Support Convention and the 2007 Hague Maintenance Protocol, which were subjects of research in this project, are binding for the Czech Republic by virtue of its approval by the EU).6 The precedence of the international treaties and EU Regulations is expressly confirmed in Article 2 of Czech PIL Act,7 which specifies that the international treaties binding on the Czech Republic and any directly applicable provisions of European Union law shall be applied in preference over the Czech PIL Act. Moreover, this provision makes an explicit reference to the footnote, which contains a non-exhaustive list of EU Regulations which prevail over the Czech PIL Act, for the purpose of the EUFam’s Project, the Brussels IIa Regulation, the Maintenance Regulation and the 2007 Hague Maintenance Protocol must be emphasised. However, the Czech Republic has not adhered to enhanced cooperation with the EU in the area of the applicable law in matrimonial matters under the Rome III Regulation,8 which formed part of the research provided within this project. Conversely, the Czech Republic indicated its wish to participate in the establishment of enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions on the property regimes of international couples, covering both matters of matrimonial property regimes and the property consequences of registered partnerships. The property regimes regulations are applicable since 29 January 2019. The Czech conflict-of-laws rules, rules on international civil procedure and recognition and enforcement of foreign judgments are contained in the already mentioned Czech PIL Act, which came into force only on 1 January 2014 and replaced the previous 1963 PIL Act.9 Due to the fact that the rules on jurisdiction in the Maintenance Regulation and Succession Regulation are unlimited and exclusive in the sense that they delineate the jurisdiction of the Member State courts as well as third state courts and

5 1958 Hague Maintenance Convention (entered into force for the Czech Republic 29 December 1970); 1970 Hague Divorce Convention (entered into force for the Czech Republic 1 January 1993); 1973 Hague Maintenance Convention (entered into force for the Czech Republic 1 January 1993); 1980 Hague Child Abduction Convention (entered into force for the Czech Republic 1 March 1998); 1993 Hague Adoption Convention (entered into force for the Czech Republic 1 June 2000); 1996 Hague Convention on the Protection of Children (entered into force for the Czech Republic 1 January 2002); 2000 Hague Convention on the International Protection of Adults (entered into force for the Czech Republic 1 August 2012). 6 2007 Hague Maintenance Protocol 2007, Hague Child Support Convention. 7 Act No 91/2012 Coll. of 25 January 2012 on private international law (Zákon o mezinárodním právu soukromém), Official Gazette 22 March 2012 No 35. 8 Art 50 of Czech PIL Act governing the law applicable to divorce remains applicable. Art 50 of the PIL Act refers to Art 49 of the PIL Act which governs the law applicable to the spouses’ personal relations (which cover their mutual rights and obligations, such as to be faithful to each other, to live together, to respect each other, etc). Art 49 provides: ‘The personal relations of spouses are subject to the body of laws of the state of which they are both citizens. If they are citizens of different states, these relations are subject to the body of laws of the state in which both spouses have their usual place of residence or otherwise to Czech law’. On the official translation provided by the Czech Ministry of Justice at obcanskyzakonik.justice.cz/index.php/home/ zakony-a-stanoviska/preklady/english. 9 Act No 97/1963 Coll. of 4 December 1963 on private international law and the rules of procedure relating thereto (Zákon o mezinárodním právu soukromém a procesním), Official Gazette 16 December 1963 No 55. On the new Czech PIL Act (in English) see M Pauknerová, M Pfeiffer ‘The New Act on Private International Law in the Czech Republic: Starting Points and Perspectives Within the European Union’ (2014) JPIL 205–26; P Dobias ‘The New Czech Private International Law’ (2015) RDIPP 109–28; N Rozehnalová, K Drličková, Czech Private International Law (Brno, Publications of the Masaryk University, 2015).

464  Lenka Válková do not contain any provision referring to national law or otherwise permitting its use10 (erga omnes approach of the system of allocation of jurisdiction is reinforced by autonomous subsidiary jurisdiction and the rule on forum necessitatis),11 as for example, in the Brussels IIa Regulation in Article 7 or 14, the Czech provisions on jurisdiction relating to maintenance, such as Article 56 concerning child maintenance, are considered to be irrelevant, and other provisions on maintenance, such as Article 47 concerning spouses’ maintenance, refer directly to the Maintenance Regulation without providing any additional specific ground of jurisdiction.12 The same approach in the Czech PIL Act was chosen for the law applicable to the maintenance under the 2007 Hague Maintenance Protocol and Succession Regulation.13 One of the most significant amendments introduced into the new PIL Act concerns the use of the habitual residence as the connecting factor and jurisdictional ground, which seems to be coherent with the EU Regulations concerning family and succession matters.14 Indeed, under Header V Family Law in ‘Part Four Provisions for Single Types of Private Legal Situations’ of the Czech PIL Act is built predominantly around the habitual residence or on the nationality.15 These connecting factors

10 See Recital 15 of the Maintenance Regulation: ‘The circumstance that the defendant is habitually resident in a third state should no longer entail the non-application of Community rules on jurisdiction, and there should no longer be any referral to national law’. On support of this conclusion see also TM De Boer ‘What we should not expect from a recast of the Brussels IIbis Regulation’ (2015) NedIPR 13; D Ranton, ‘A sad death in the family: Owusu, the Maintenance Regulation and the demise of forum conveniens’ (2012) IFLJ 437; F Marongiu Buonaiuti, ‘The EU Succession Regulation and third country courts’ (2016) JPIL 547; L Fumagalli, ‘Il sistema italiano di diritto internazionale privato e processuale e il regolamento (UE) n. 650/2012 sulle successioni:spazi residui per la legge interna?’ (2015) RDIPP 779–92. 11 P Franzina, ‘Sul forum necessitatis nello spazio giudiziario europeo’ (2009) RDI 1121–29. 12 M Zavadilová, ‘Section 56’ in M Pauknerová, N Rozehnalová and M Zavadilová et al (eds), Zákon o mezinárodním právu soukromém. Komentář (Prague, Wolters Kluwer, 2013) 289–96; Pauknerová, Pfeiffer (n 9) 212. As to the provisions in succession matters, at the time of adoption of Czech PIL Act in 2012, the Succession Regulation has not been enacted therefore, the Czech PIL includes a very detailed regulation of succession law (Arts 74–79). 13 Art 57(1) of the Czech PIL Act confirms that maintenance matters towards minors are governed by the law determined by an international convention referred to in the directly applicable EU law. Similar wording may be found in Art 49(2) concerning the conflict-of-laws rule for maintenance between spouses and Art 50(4) concerning the conflict-of-laws rule for maintenance between divorced spouses. 14 The terminological inconsistency in Czech law in connection with the term of habitual residence, which is probably related to its non-uniform translation, must be noted. There are two different concepts with the same meaning. On one side, the Maintenance Regulation, Succession Regulation, Property Regime Regulations and the PIL Act use the term ‘obvyklý pobyt’, and the Brussels IIa Regulation and Rome III Regulation the term ‘obvyklé bydliště’. Moreover, the official Czech translation of the PIL Act operates with the English term of ‘usual place of residence’. See also the considerations of Nejvyšší soud, 27 September 2011, 30 Cdo 2244/2011, CZT20110927, where according to the Supreme Court more suitable than the term ‘obvyklé bydliště’ as translated in the Brussels IIa Regulation would be the term ‘obvyklý pobyt’ as it better describes the autonomous nature of this indicator, as opposed to the Czech term ‘bydliště’ established in national legislation, in which the intention to stay permanently in a certain place is presumed. 15 The explanatory memorandum to PIL Act clarifies that the jurisdictional ground based on nationality must be maintained since it is essential to allow the Czech citizen access to the Czech courts in the matters of personal status of vital importance. See Parliamentary Press No 364 part ½ of 26 May 2011, proposal to the Act of Private International Law (Sněmovní tisk 364/0, část č. ½ Vl.n.z. o mezinárodním právu soukromém) 59.

The Application of the EUFam’s Regulations in the Czech Republic  465 and jurisdictional grounds in family matters are often formulated in hierarchical16 or alternative17 order. The new PIL Act formed part of the recodification package of the Czech private law adopted in 2012. The recodification package of the Czech private law also affected substantive family law: the Family Act18 was repealed and the rules on family law were integrated under Part Two ‘Family Law’ of the new Civil Code19 (Articles 655–975). The new provisions of family law should reflect the case law of the European Court of Human Rights, as well as the principles drafted of by Commission on European Family Law.20 The recodification had an impact also on the Czech civil procedural law: noncontentious proceedings and other special proceedings, which are prevalently family proceedings, are newly incorporated into the Act on Special Court Proceedings.21 Until then, there were no special rules determining specific types of family proceedings in an autonomous manner. For example, the Act on Special Court Proceedings has newly established autonomous rules on proceedings for determinations of parental responsibility and paternity or divorce proceedings (although it is typically considered a mix between non-contentious and contentious proceedings). The Civil Procedure Code22 represents lex generalis as to the Act on Special Court Proceedings, and still finds its

16 See eg Art 48(1) of Czech PIL Act on law applicable to personal relations of spouses; or Art 48(3) of Czech PIL Act on law applicable to the property relations of spouses. 17 See eg Art 47 of Czech PIL Act on jurisdiction on the dissolution of marriage, the annulment of marriage and the designation of whether or not a marriage has legally occurred; or Art 56(1) of Czech PIL Act on jurisdiction in matters of the maintenance and parental responsibility matters. 18 Act No 94/1963 Coll. of 4 December 1963, on Family Law (Zákon o rodině) as amended, Official Gazette 13 December 1963 No 53. 19 Act 89/2012 Coll. of 3 February 2012, on Civil Code (Zákon občanský zákoník) as amended, Official Gazette 22 March 2012 No 33. 20 On Principles on Divorce and Maintenance Between Former Spouses, Principles on Parental Responsibilities and Principles on Property Relations between Spouses see K Boele-Woelki, F Ferrand, C González-Beilfuss, M Jänterä-Jareborg, N Lowe, D Martiny, W Pintens, Principles of European Family Law Regarding Parental Responsibilities (Antwerpen-Oxford, Intersentia, 2007); K Boele-Woelki, F Ferrand, C González-Beilfuss, M Jänterä-Jareborg, N Lowe, D Martiny, W Pintens, Principles of European Family Law Regarding Divorce and Maintenance Between Former Spouses (Antwerpen-Oxford, Intersentia, 2004). The Principles of European Family Law on Parental Responsibility have been considered for the purpose of the text of new Czech Civil Code. Parental responsibility is newly made up of the rights and obligations of parents: and concern a) childcare; b) protection of the child; c) maintaining personal contact with the child; d) ensuring child-raising and education; e) determining the child’s place of residence; f) child’s representation; and g) the administration of his assets (Art 858 of the Civil Code). On the other hand, the Principles of European Family Law on Divorce have not been fully taken into account since the new Civil Code does not regulate divorce by a spouses’ agreement (so-called consensual divorce). The Civil Code regulates only so-called i) contentious divorce – a marriage can be ended if its coexistence is deeply, permanently and irreparably distorted and cannot be expected to be restored, whereby the court must examine the existence of the marriage breakdown; or ii) uncontested divorce (in this case the court does not investigate the cause of the breakdown) based on: a) the proof that marriage lasted for at least one year and the spouses did not live together for more than six months; b) parental responsibility agreement approved by the court; c) the spouses agreement relating to their property, housing arrangements and maintenance after the divorce. In this regard see Z Králíčková, ‘Rodinné právo v novém občanském zákoníku’ (2013) Právní rozhledy 801. 21 Act No 292/2013 Coll. of 12 September 2013, on Special Court Proceedings (Zákon o zvláštních řízeních soudních) as amended, Official Gazette 27 September 2013 No 112. 22 Act No 99/1963 of 4 December 1963, on the Civil Procedure Code (Občanský soudní řád) as amended, Official Gazette 17 December 1963 No 56.

466  Lenka Válková application, for example, in the service of legal filings, the definition and representation of participants of the proceedings, or the requirements of the judgment.23 The internal competence of Czech court of first instance in family law cases is assigned to Czech district courts (okresní soudy). Regional courts (krajské soudy) sit as courts of appeal. The competence for the proceedings concerning return orders in international child abduction cases is concentrated in front of the Městský soud v Brně (where the Office for the International Protection of Children is located)24 and the Krajský soud v Brně deals as appellate court in child abduction proceedings. The appeal in family matters is not always admissible, for example, when the application for divorce, jointly filed by the spouses, is upheld by the court (Article 395 of the Act on Special Court Proceedings) or if the court approves the parents’ agreement in the judgment (Article 476 of the Act on Special Court Proceedings). The Supreme Court (Nejvyšší soud) acts as the competent court for decisions concerning extraordinary appeal upon the condition that such appeal is admissible pursuant to Act on Special Court Proceedings and Civil Procedure Code: generally, family matters, with an exception for matters concerning property regimes, are excluded from the extraordinary appeal by virtue of Article 238(1) of the Civil Procedure Code. However, this does not apply with regard to determining the jurisdiction of the court.25 Moreover, in case of matters falling within the jurisdiction of the courts of the Czech Republic, where the conditions of territorial competence are lacking or cannot be ascertained, the Supreme Court shall determine which court is competent to hear the case pursuant to Article 11(3) of Civil Procedure Code.26 The competence to recognise and enforce foreign judgments (outside the Brussels IIa Regulation and other international conventions) in matters concerning divorce, legal separation, annulment of marriage and declaring whether a marriage exists or not, rests upon the Supreme Court by virtue of Article 51(2) of PIL Act.

II.  Czech Case Law on Cross-Border Family Disputes A.  Brussels IIa Regulation As specified above, the Brussels IIa Regulation was applied in a large amount of the collected cases within this project. Out of 53 judgments, 44 judgments refer to the Brussels IIa Regulation, which represents 64 per cent of all Czech cases collected in this project. Only six judgments relate to divorce, nine to child abduction and 30 judgments relate to parental responsibility matters.

23 J Levý, ‘§ 1 Úvodní ustanovení’ in K Svoboda and Š Tlášková (eds), Zákon o zvláštních řízeních soudních (Praha, CH Beck, 2015). 24 On the Czech Central Authority see also A Schulz, ‘The Cooperation between Central Authorities’ in ch 28 of this volume. 25 See, eg Nejvyšší soud, 31 October 2012, 30 Cdo 2374/2012, CZT20121031. 26 See, eg Nejvyšší soud, 16 July 2008, 4 Nd 55/2008, CZT20080716.

The Application of the EUFam’s Regulations in the Czech Republic  467

i.  Scope of Application The very first note to make upon reflection, which might be assumed from reading the collected Czech case law, relates to continuing difficulties of the Czech courts regarding the understanding and application of specific EU and international legal instruments in family matters. The case law revealed improper application of the PIL Act instead of the Brussels IIa Regulation (also mistakenly asserted by the attorneys),27 or even Czech domestic rules were often directly applied by the national courts without previous determining its jurisdiction to hear the matter.28 It seems that the courts sometimes mixed jurisdiction and applicable law in different subject matters.29 The temporal scope of application of the Brussels IIa Regulation was prevalently evaluated by the Czech courts in a proper manner. Although the Brussels II Regulation instead of the Brussels IIa Regulation was erroneously applied by the courts of first instance in two cases, such judgments were consequently annulled by the courts of appeal, which pointed to the need to apply the Brussels IIa Regulation.30 The problem of delimitation of the subject-matter scope of application of the Brussels IIa Regulation arose in one judgment, in particular, in the context of Article 1(1)(b) and 1(2)(e).31 In this case, the grandfather, guardian of the child with habitual residence in Germany, concluded a donation agreement of real estate, owned by the child, with the child’s aunt. The parents filed an action on approval of conclusion of the donation agreement. It must be recalled Recital 9 of the Brussels IIa Regulation. This Recital distinguishes between: (i) disposal of the child’s property aimed at protecting the child within the meaning of Recital 9 of the Brussels IIa Regulation, in particular the designation and functions of a person or body having charge of the child’s property, representing or assisting the child, and the administration, conservation or disposal of the child’s property; and (ii) disposal which does not concern the protection of the child. Only the first category falls in the scope of the Brussels IIa Regulation, whereby the second category should be governed by the Brussels Ia Regulation.32 Although in that specific 27 See, eg Nejvyšší soud, 31 October 2012, 30 Cdo 2374/2012, CZT20121031; Nejvyšší soud, 24 April 2013, 30 Cdo 715/2013, CZT20130424. From these judgments result that the attorney representing one of the parents in court proceedings affirmed necessity to apply the PIL Act instead of the Brussels IIa Regulation. 28 KS v Českých Budějovicích, 14 January 2009, 5 Co 105/2009, CZS20090114, where the court of appeal annulled judgment of the court of first instance, which directly applied provisions of Family Act without previous determination of its jurisdiction. See also KS v Brně, 18 September 2012, 38 Co 356/2012, CZS20120978. 29 KS v Brně, 5 August 2014, 17 Co 76/2013, CZS20140805, where the court in the proceedings relating to parental responsibility and maintenance referred to Art 5(2) of the Brussels I Regulation as to maintenance and to Art 24 of the 1963 PIL Act, which governs the law applicable to parental responsibility, but not to the Brussels IIa Regulation. 30 See KS v Českých Budějovicích, 21 February 2012, 5 Co 459/2012, CZS20120221; KS v Českých Budějovicích, 12 March 2007, 5 Co 526/2007, CZS20070312. 31 KS v Brně, 19 November 2015, 13 Co 83/2015, CZS20151119. However, the court established its jurisdiction according to Art 15 of the Brussels IIa Regulation although conditions for application of this provision were not satisfied. 32 See Directorate-General for Justice, European Commission, ‘Practice guide for the application of the Brussels IIa Regulation’ 21 at publications.europa.eu/en/publication-detail/-/publication/f7d39509-3f10-4ae 2-b993-53ac6b9f93ed#; W Pintens, ‘Article 1’ in U Magnus, P Mankowski (eds), Brussels IIbis Regulation. European Commentaries on Private International Law (Munich, Sellier European Law Publishers, 2012) 80. In the context of approval of an agreement on the division of an estate concluded by a guardian ad litem on behalf of minor children in succession proceedings, see also Case C-404/14 Matoušková [2015] ECLI:EU:C:2015:653.

468  Lenka Válková case the approval of conclusion of the donation agreement could probably be qualified as the disposal of the child’s property aimed at protecting the child within the meaning of Recital 9, it may be stated the court of appeal could assess the facts in more details.

ii.  General Grounds of Jurisdiction a.  Habitual Residence as a Ground for Jurisdiction Significant difficulties were not encountered with respect to determining the habitual residence of the spouses.33 However, courts often applied Article 3(a) of the Brussels IIa Regulation referring to the habitual residence without explaining in the judgments on what bases the spouse(s) established habitual residence.34 An analysis of the case law supports the assumption that the Czech courts had similarly smooth determinations of the habitual residence of the child.35 This may be by virtue of the interpretation of the habitual residence provided by Supreme Court in its judgment of 27 September 2011, which seems to serve as an interpretation guide for the courts of lower instance.36 In this judgment, the Supreme Court vacated the judgment of the court of appeal, which stated that a child that remained for more than two years in Germany had stayed long enough to determine permanent residence there, when the strong integration of the child in a social and family environment in Germany derived from the child’s membership in a German football team, an e-mail exchange between the child’s parents demonstrating the mother’s relationship with a partner in Germany; other relatively important facts such as schooling, residence of grandparents and father located in the Czech Republic could not overturn the reasoning of the court regarding the habitual residence in Germany. Contrary to the court of appeal, the Supreme Court interpreted the term of habitual residence of the child in virtue of CJEU Case C-523/07 in A,37 while taking into account the objectives of the provisions of the Brussels IIa Regulation, in particular, Recital 12, which specifies that the grounds of jurisdiction in matters of parental responsibility are shaped in the light of the best interests of the child, in particular on the criterion of proximity. According to the Supreme Court, the child’s habitual residence under Article 8(1) of the Brussels IIa Regulation must be understood as a place which indicates a certain degree of integration of the child in social and family context: (i) duration, regularity, conditions and reasons for the stay and for the transfer of the family to other state; (ii) nationality of the child; (iii) place and conditions of

33 KS v Brně, 11 April 2013, 4 Co 7/2013, CZS20130411; KS v Brně, 11 November 2014, 20 Co 637/2014, CZS20141111. 34 KS v Českých Budějovicích, 21 February 2012, 5 Co 459/2012, CZS20120221. 35 KS v Brně, 4 February 2011, 20 Co 1334/2010, CZS20110204, cf KS v Brně, 5 November 2014, 20 Co 596/2014, CZS20141105. It results from the latter judgment that court of first instance did not verify any facts and circumstances for determining the child’s habitual residence, and relied on the written filling affirming mother’s intention to move with the child to Slovakia in the future. The court of appeal correctly annulled this judgment. 36 Nejvyšší soud, 27 September 2011, 30 Cdo 2244/2011, CZT20110927. This case was referred to by another courts, for example by Nejvyšší soud, 27 January 2015, 30 Cdo 1994/2013, CZT20150127; Nejvyšší soud, 31 October 2012, 30 Cdo 2374/2012, CZT20121031; Nejvyšší soud, 24 April 2013, 30 Cdo 715/2013 CZT20130424; KS v Českých Budějovicích, 11 October 2013, 5 Co 2019/2013, CZS20131011. 37 Case C-523/07 A [2009] ECR I-02805, ECLI:EU:C:2009:225.

The Application of the EUFam’s Regulations in the Czech Republic  469 schooling; (iv) language skills; (v) family and social ties of the child in that state; and (vi) other important factors which are not only of a temporary or occasional nature, must be reflected by the national courts in each individual case. Moreover, the Supreme Court referred to Mercredi Case C-497/10, as well, and highlighted that the use of the adjective ‘habitual’ requires a certain degree of permanency or regularity in the place of residence, which must be distinguished from mere temporary presence.38 Among the other decisions classified in the EUFam database, the Czech courts assessed other factors such as the location of the child’s doctor39 or place of parent’s work40 for purpose of determining child’s habitual residence. For example, the foster family’s location in Germany was deemed irrelevant by the court since the child was habitually resident in the Czech Republic as required by Article 8 of the Brussels IIa Regulation.41 The habitual residence of the child was easily determined by the courts, when almost all the relevant factual elements pointed to one state.42 However, in one case, the relevant connections were perfectly divided between two states.43 In this case, the Krajský soud v Českých Budějovicích stated that it was not excluded that the child was habitually resident in two States. Although the child lived in the Switzerland (place of parent’s work), all parties to the proceedings were citizens of the Czech Republic, they often travelled to the Czech Republic to visit family, they were staying in the mother’s apartment, the child’s paediatrician was situated in the Czech Republic and the child’s mother tongue was Czech (whereby parents had basic knowledge of German). However, such conclusions by the court conjure significant questions.44 b.  Nationality as a Ground for Jurisdiction As to the application of the jurisdictional ground based on nationality in proceedings concerning divorce according to Article 3(1)(b) of the Brussels IIa Regulation, one comment must be mentioned in relation to Czech procedural rules on territorial competence in divorce proceedings. Article 383 on Special Court Proceedings provides that the competent court for divorce proceedings is a court: (i) in whose district the spouses have or had their last common residence in the Czech Republic, if at least one of the spouses still lives there; (ii) in absence of such a court, a court of general jurisdiction of a respondent; (iii) or in absence of such a court, a court of general jurisdiction of an applicant. By virtue of Article 85 of the Civil Procedure Code, the court of general jurisdiction is a court in whose district a person has residence; or in the absence of residence in the Czech Republic, a court in whose district a person stays with an intention to live permanently.45 Since 30 September 2017 it has been possible to determine, 38 Case C-497/10 Barbara Mercredi v Richard Chaffe [2010] ECR I-14309, ECLI:EU:C:2010:829. 39 Nejvyšší soud, 27 September 2011, 30 Cdo 2244/2011, CZT20110927; KS v Českých Budějovicích, 11 October 2013, 5 Co 2019/2013, CZS20131011. 40 Nejvyšší soud, 24 April 2013, 30 Cdo 715/2013, CZT20130424. 41 KS v Českých Budějovicích, 14 January 2009, 5 Co 105/2009, CZS20090114. 42 Nejvyšší soud, 31 October 2012, 30 Cdo 2374/2012, CZT20121031. 43 KS v Českých Budějovicích, 11 October 2013, 5 Co 2019/2013, CZS20131011. 44 On more details see T Kruger, ‘Finding a Habitual Residence’, ch 11 of this volume. 45 The residence is not defined by Czech procedural law, therefore, it is necessary to refer to Art 80 of Czech Civil Code. For more details see O Přidal ‘§ 85’ in K Svoboda, P Smolík, J Levý, R Šínová et al (ed), Občanský

470  Lenka Válková as the court of general jurisdiction, a court in whose district a permanent residence is recorded in the Central Residential Register (as amended by Act 296/2017 Coll.). The purpose of the amendment was to refine the criteria for determining territorial jurisdiction and for avoiding lengthy and pointless disputes over territorial jurisdiction,46 which may be demonstrated on a case from 2008 decided by the Supreme Court. In this case, the spouses, Czech nationals, were habitually resident in Germany and the respondent registered his permanent residence in the Central Residential Register in Prague. The court of first instance applied Article 3(1)(b) of the Brussels IIa Regulation and concluded that it did not have territorial competence under Czech procedural rules. The case was consequently submitted to the Supreme Court for determining territorial jurisdiction. The Supreme Court held that the conditions for determining territorial competence under Article 383 on Special Court Proceedings (former Article 88(a) (of the Civil Procedure Code)), in conjunction with Article 85(1) of the Civil Procedure Code, were not fulfilled since the spouses: (i) did not have the last common place of residence in the Czech Republic; (ii) were not resident in the Czech Republic; and (iii) they lived in Germany. The Supreme Court emphasised that under Czech procedural law, the record of permanent residence in the Central Residential Register did not in itself prove a person’s residence. Therefore, the Supreme Court concluded that the court whose district contained significant places of the defendant’s close relationship has jurisdiction in virtue of Article 11(3) of the Civil Procedure Code. However, according to a new provision in Article 85 of the Civil Procedure Code, it would be possible to determine the territorial competence of the court in whose district the spouse(s) registers as a permanent resident in the Central Residential Register.

iii.  Jurisdiction in Cases of Child Abduction and the Return of the Child The problem concerning ‘adequate arrangements’ laid out in Article 11(4) of the Brussels IIa Regulation in the context of the Czech Act on Special Court Proceedings came into play in four cases.47 Pursuant to Article 13(1)(b) of the 1980 Hague Child Abduction Convention the court has no duty to order the return of the child if ‘there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation’. Pursuant to Article 11(4) of the Brussels IIa Regulation the court is also obliged to order the return of the child in the presence of such a grave risk specified in the 1980 Hague Child Abduction

soudní řád (Praha, CH Beck, 2017) 372 ff. Moreover, when the defendant, who is a Czech citizen, has no court of general jurisdiction in the Czech Republic, the court in whose district the individual had his last known residence is territorially competent according to Art 86(1) of the Civil Procedure Code. In the event that the conditions for establishing territorial competence are absent or cannot be determined, the Supreme Court shall designate the court that will hear and decide the matter according to Art 11(3) of the Civil Procedure Code. 46 See, eg Nejvyšší soud, 16 July 2008, 4 Nd 55/2008, CZT20080716. 47 KS v Brně, 19 January 2016, 20 Co 622/2015, CZS20160119; KS v Brně, 23 July 2013, 20 Co 203/2013, CZS20130723; KS v Brně, 4 June 2013, 20 Co 223/2013, CZS20130604; KS v Brně, 17 July 2012, 20 Co 501/2012, CZS20120717. The problem concerning the correct use of protective measures was highlighted by M Pauknerová, M Zavadilova, J Grygar, ‘Czech Republic’ in P Beaumont, M Danov, K Trimmings, B Yüksel, Cross-Border Litigation in Europe (Oxford, Hart Publishing, 2017) 291.

The Application of the EUFam’s Regulations in the Czech Republic  471 Convention, ‘if it is established that adequate arrangements have been made’, which should secure the protection of the child after the return. By the Amendment Act of Civil Procedure Code from 2008 the new Czech procedure called ‘Special procedure on return of the child relating to international child abduction’ (Articles 193a–193e) was inserted into Heading V Special proceedings of the Civil Procedure Code.48 As provided in the Proposal for amendments to the Civil Procedure Code, the primary goal of the procedure was to guarantee as fast a return of the child as possible to the state of the child’s origin in accordance with the 1980 Hague Child Abduction Convention and the Brussels IIa Regulation.49 According to the Explanatory Memorandum to the Amendment Act of Civil Procedure Code from 2008, Article 193e of the Civil Procedure Code regulates so-called mirror orders, known to Anglo-Saxon law and used in international treaties, which are based on the factual functioning of the network of so-called liaison magistrates, whose less formalised communication enables them to issue mirror decisions.50 Following the recodification of Czech civil law, the ‘Special procedure on return of the child relating to international child abduction’ was relocated into the Act on Special Court Proceedings (Part II ‘Special proceedings’ of Heading V ‘Family proceedings’ of Section 5 ‘Proceedings relating to the care of the minor’), which has been in effect since 1 January 2014. In particular, Article 489(2) of the Act on Special Court Proceedings allows Czech courts to decide whether to make conditional or to conditionally suspend the return of the child. Such a conditional suspension of return of the child depends on the fulfilment of adequate arrangements by the petitioner, or when there is a decision or other measure issued by the authorities of the state, where the child should be returned.51 According to the Commentary to Article 489(2) of the Act on Special Court Proceedings, the legal regulation and conditions of adequate arrangements derives from Article 11(4) of the Brussels IIa Regulation.52 The EUFam’s Project compiled case law indicates that the Czech courts ordered the following adequate arrangements in their judgments: periodic payment or lump sum ordered to an applicant (left-behind parent) to be paid by a respondent (parent who wrongfully removed the child) for a period of from six to 12 months after the return of the child, paid accommodation provided to a respondent in the state of child’s origin in a prescribed dimension and in prescribed conditions for a certain period of time, or withdrawal of criminal charges against the taking parent. In all four judgments, a risk for the safety of the child pursuant to Article 13(b) of the 1980 Hague Child Abduction Convention was expressly excluded. In particular, it was stressed that the conditions as specified in Article 13(b) of the 1980 Hague Child Abduction Convention must be interpreted restrictively and indeed, there was no reason to be aware that the return of

48 Act No 295/2008 Coll is the amending Act, which amended the Act on Civil Procedure Code, and also Act No 359/1999 Coll., on Social and Legal Protection of Children. 49 See Parliamentary Press No 390 part ½ of 19 December 2007, amendment to the Civil Procedure Code (Sněmovní tisk 394/0, část č. ½ Novela občanského soudního řádu) 12. 50 See Parliamentary Press No 390 part ½ of 19 December 2007, amendment to the Civil Procedure Code (Sněmovní tisk 394/0, část č. ½ Novela občanského soudního řádu) 19. 51 Until 1 January 2014 this protective measure was regulated by Art 193e(3) of the Civil Procedure Code. 52 M Hromada, ‘§ 489’ in K Svoboda, Š Tlášková, D Vláčil and others (eds), Zákon o zvláštních řízeních soudních (Praha, CH Beck, 2015) 977.

472  Lenka Válková the child to his habitual residence would expose him to physical or psychological harm or would place him in an intolerable situation. The Constitutional Court was called upon to review the constitutionality of this form of adequate arrangement, but on this occasion the Constitutional Court also remembered that it does not have the right to assess the final decisions or other violations committed by public authorities infringing constitutionally guaranteed fundamental rights and basic freedoms from the point of view of the correctness of the application of the sub-constitutional law in virtue of Article 87(1)(d) of Constitution of the Czech Republic No 1/1993 Coll.53 However, the Constitutional Court stated that despite the absence of reasons excluding the return of the displaced child to his or her habitual residence according to Article 13 of the 1980 Hague Child Abduction Convention, the return itself cannot be ordered automatically and mechanically, irrespective of the interests of the child concerned. The Constitutional Court held that in full respect of the best interest of the child the courts are required to choose a procedure and measures, which exclude, or at least mitigate the negative effects on the psychological development of a child associated with the destabilisation of his educational environment, which may arise from the re-transfer from his current residence to his place of habitual residence. The Constitutional Court clarified that for this purpose, Article 489(2) of the Act on Special Court Proceedings regulates special types of arrangements, whose establishment and fulfilment can make the return of a child to his place of habitual residence conditional. The Constitutional Court highlighted that the purpose of these arrangements is not to limit or exclude the circumstances that threaten the child with severe harm, since the exceptions, which exclude the transfer of a child, are directly foreseen in the 1980 Hague Child Abduction Convention. Therefore, the Constitutional Court considered this procedure aiming at mitigating the negative effects on the psychological development of a child according to Article 489(2) of the Act on Special Court Proceedings constitutionally conformal. The Constitutional Court concluded that the analogous criteria for the decision-making activity of the courts in proceedings concerning child maintenance might be used for the assessment of the adequacy of the arrangements which have an impact on the complainant’s property sphere. In consequence, it may be stated that under the opinion of the Constitutional Court the arrangements laid down in Article 489(2) of the Act on Special Court Proceedings have a different purpose than excluding the circumstances of a grave risk, under which a child’s return would expose him or her to physical or psychological harm or otherwise place him or her in an intolerable situation in virtue of Article 13(b) of the 1980 Hague Child Abduction Convention. However, it must be emphasised that Article 11(4) of the Brussels IIa Regulation cannot be perceived as a general rule governing the return procedure, but it must be read strictly together with Article 13 of the 1980 Hague Child Abduction Convention.54 Otherwise stated, a court should order adequate arrangements to secure the protection of the child after his or her return only in the presence of a risk to the child’s safety. The different nature, on one hand, of the ‘other

53 Ústavní soud, 16 May 2017, II.ÚS 1080/17, CZC20170516. 54 E Pataut, E Gallant, ‘Article 11’ in U Magnus and P Mankowski (eds), Brussels IIbis Regulation (Munich, Sellier European Law Publishers, 2016) 142 f.

The Application of the EUFam’s Regulations in the Czech Republic  473 arrangements’ provided for in Article 489(2) as confirmed by the Constitutional Court, but which is based on Article 478 of the Act on Special Court Proceedings applicable for return proceedings according to the 1980 Hague Child Abduction Convention, and on the other hand, of the adequate arrangements provided in Article 11(4) of the Brussels IIa Regulation which must be read only in strict conjunction with Article 13 of the 1980 Hague Child Abduction Convention, is doubtful. It may raise the question of whether such arrangements cannot be characterised as a simple protective measure in virtue of Article 20 of the Brussels IIa Regulation, which shall cease to apply when the court of the Member State having jurisdiction under the Brussels IIa Regulation as to the substance of the matter has taken the measures it considers appropriate. However, the case law of Czech courts demonstrate that the periodic payments to be paid to the taking parents were ordered for a specific period of time after the return of the child to the state of his habitual residence without considering the temporary effect of the subsequent judgment rendered by the court of habitual residence of the child.55 Even more, the adequate arrangements in the form of payment of the periodic amount was ordered by the court of appeal although the court competent for parental responsibility had already rendered substantive judgment and the child had returned to the Member State of origin.56 It is necessary to examine whether the answer may be searched in the Brussels IIter Regulation.57 New specifications of adequate arrangements can be found in Recital 45 of the Brussels IIter Regulation: Where a court considers refusing to return a child solely on the basis of point (b) of Article 13(1) of the 1980 Hague Convention, it should not refuse to return the child if either the party seeking the return of the child satisfies the court, or the court is otherwise satisfied, that adequate arrangements have been made to secure the protection of the child after his or her return. Examples for such arrangements could include a court order from that Member State prohibiting the applicant to come close to the child, a provisional, including protective measure from that Member State allowing the child to stay with the abducting parent who is the primary carer until a decision on the substance of rights of custody has been made in that Member State following the return, or the demonstration of available medical facilities for a child in need of treatment. Which type of arrangement is adequate in the particular case should depend on the concrete grave risk to which the child is likely to be exposed by the return without such arrangements.

Moreover, Recital 46 of the Brussels IIter Regulation further specifies: Where appropriate, when ordering the return of the child, it should be possible for the court to order any provisional, including protective measures pursuant to this Regulation which it considers necessary to protect the child from the grave risk of physical or psychological harm entailed by the return which would otherwise lead to a refusal of return. Such provisional measures and their circulation should not delay the return proceedings under the 1980 Hague Convention or undermine the delimitation of jurisdiction between the court seised with the

55 KS v Brně, 4 June 2013, 20 Co 223/2013, CZS20130604. 56 KS v Brně, 23 July 2013, 20 Co 203/2013, CZS20130723. 57 See also Council of the European Union, Proposal for a Council Regulation on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast) – General approach 15401/18, 12 December 2018, Art 25(4).

474  Lenka Válková return proceedings under the 1980 Hague Convention and the court having jurisdiction on the substance of parental responsibility under this Regulation.

This Recital refers to new Article 27(5) of the Brussels IIter Regulation: Where the court orders the return of the child, the court may, where appropriate, take provisional, including protective, measures in accordance with Article 15 of this Regulation in order to protect the child from the grave risk referred to in point (b) of Article 13(1) of the 1980 Hague Convention, provided that the examining and taking of such measures would not unduly delay the return proceedings.

Several conclusions can be drawn from the provisions above: i. Adequate arrangements must be made to secure the protection of the child after his or her return. ii. A court considering the refusal of the return of a child solely on the basis of Article 13(1)(b) of the 1980 Hague Convention may order such adequate arrangements. It means that there must be a grave risk that child’s return would expose him to physical or psychological harm or otherwise place him in an intolerable situation.58 iii. The type of adequate arrangements will depend on the concrete grave risk. iv. Adequate arrangements may include any provisional, including protective, measures pursuant to Article 15 of the Brussels IIter Regulation if they protect the child from the grave risk referred to Article 13(1)(b) of the 1980 Hague Convention. Again, it means that there must be a grave risk that child’s return would expose him to physical or psychological harm or otherwise place him in an intolerable situation. v. Provisional, including protective, measures pursuant to Article 15 of the Brussels IIter cannot delay the return proceedings. vi. Provisional, including protective, measures pursuant to Article 15 of the Brussels IIter Regulation shall cease to apply as soon as the court of the Member State having jurisdiction under this Regulation as to the substance of the matter has taken the measures it considers appropriate. However, as highlighted by the Constitutional Court, the arrangements pursuant to Article 489(2) of the Act on Special Court Proceedings may be ordered despite an absence of reasons against the return of the displaced child to his or her habitual residence according to Article 13 of the 1980 Hague Convention on Child Abduction, ie when there is no grave risk. An arrangement pursuant to Article 489(2) of the Act on Special Court Proceedings shall only mitigate the negative effects on the psychological development of a child associated with the destabilisation of his educational environment. Moreover, according to the new Brussels IIter Regulation, provisional measures 58 This may be supported by Hague Conference on Private International Law, Conclusions and Recommendations and Report of Part I of the Sixth Meeting of the Special Commission on the practical operation of the 1980 Hague Convention on Child Abduction and the 1996 Hague Convention on the Protection of Children, Prel. Doc. No 14 of November 2011, at www.hcch.net/en/publications-and-studies/ details4/?pid=6224&dtid=57 annex 1 para 42, which facilitates the safe return of the child and the accompanying parent: ‘In considering the protection of the child under the 1980 and 1996 Conventions regard should be given to the impact on a child of violence committed by one parent against the other.’

The Application of the EUFam’s Regulations in the Czech Republic  475 and their circulation should not delay the Hague return proceedings,59 but, in the Czech judgments, adequate arrangements according to Article 489(2) of the Act on Special Court Proceedings were often formulated as a condition for the return of the child to the Member State of origin (for example, payment of a specific amount to the taking parent before the return of the child to the Member State of origin).60 In consequence, it is probable that the adequate arrangements formulated as a condition for the return (when there is no grave risk within the meaning of Article 13(b) of the 1980 Hague Convention on Child Abduction) would be able to delay the Hague return proceedings.61 Lastly, in contrast with Article 27(5), but in conjunction with Article 15 of the Brussels IIter Regulation, adequate arrangements according to Article 489(2) of the Act on Special Court Proceedings ordered by Czech courts were not formulated as interim measures which cease to apply when the court of the Member State having jurisdiction under the Brussels IIa Regulation as to the substance of the matter takes the measures it considers appropriate.62 The problems also arise with respect to the possibility of recognising and enforcing a judgment providing for such adequate arrangements according to Article 489 (2) of the Act on Special Court Proceedings in the Member State of the child’s habitual residence under the Brussels IIa Regulation.63 However, if we look into new Recital 46 of the Brussels IIter Regulation, it provides: Those measures should be recognised and enforced in all other Member States including the Member States having jurisdiction under this Regulation until a court of such a Member State has taken the measures it considers appropriate.

If can be generally assumed that arrangements according to Article 489(2) of the Act on Special Court Proceedings do not enter into the category of interim adequate arrangements under Article 27 of the Brussels IIter due to their formulation as nonprovisional measures and mainly due to the absence of any grave risk that child’s return would expose him to physical or psychological harm or otherwise place him in an intolerable situation in virtue of Article 13(b) of the 1980 Hague Convention on Child Abduction (which is expressly rejected in the judgment), it is questionable whether such adequate arrangements will be recognised and enforced in the Member State of the child’s origin.

59 ibid, Recital 46 and Art 27(5). 60 KS v Brně, 19 January 2016, 20 Co 622/2015, CZS20160119. 61 See in this regard also Hague Conference on Private International Law, Conclusions and Recommendations and Report of Part I of the Sixth Meeting of the Special Commission on the practical operation of the 1980 Hague Child Abduction Convention and the 1996 Hague Convention on the Protection of Children (n 58) annex 1 para 41, which provides: ‘It was noted that the 1996 Convention provides a jurisdictional basis, in cases of urgency, for taking measures of protection in respect of a child, also in the context of return proceedings under the 1980 Convention.’ This confirms an opinion, that measures of protection in respect of a child should be formulated as interim measure according to Art 11 of the 1996 Hague Convention on the Protection of Children, applicable also in respect to the proceedings under 1980 Hague Child Abduction Convention. 62 KS v Brně, 23 July 2013, 20 Co 203/2013, CZS20130723. 63 The non-respect of the safeguards by the Greek court formulated in the return order by the Czech court of appeal was reported by Pauknerová, Zavadilova, Grygar, ‘Czech Republic’ (n 47). However, such judgment is not available.

476  Lenka Válková

iv.  Prorogation of Jurisdiction More than seven judgments were collected within the EUFam’s Project, which, directly or indirectly, referred to Article 12 of the Brussels IIa. Czech courts have meaningfully tackled questions regarding the conditions of application of Article 12 of the Brussels IIa Regulation. a.  Evaluation of Conditions of Article 12(1) or 12(3) of the Brussels IIa Regulation ex officio? A significant set of judgments concerned the situation when the courts of first instance declared lack of jurisdiction even when all the conditions of Article 12(1) or 12(3) of the Brussels IIa Regulation might have been fulfilled. In consequence, in several decisions the courts of appeal remitted the cases back to the lower courts for further consideration, in particular for verification of the fulfilment of the conditions prescribed in Article 12 of the Brussels IIa Regulation,64 or the appellate court even directly overruled the judgment of the court of first instance and declared that all conditions in Article 12 of the Brussels IIa Regulation were fulfilled.65 However, the question arises whether the seised Member State court is obliged to verify the conditions for application of Article 12 of the Brussels IIa Regulation ex officio when application of this provision is not invoked by the parties. This may be demonstrated in a case of the Krajský soud v Brně (the court of appeal) where the court of first instance declared its lack of jurisdiction in the dispute concerning a motion for adjustment of a custody order, which was claimed by the Czech mother on behalf of the child, and both were habitually resident in the UK, against the father habitually resident in Slovakia.66 Both parents lodged appeals against the judgment affirming the jurisdiction of the Czech courts since the jurisdiction of the UK courts would not be in the best interest of the child. Krajský soud v Brně confirmed the decision of the court of first instance and declared lack of its jurisdiction, without considering application of Article 12 of the Brussels IIa Regulation. Although the parties did not explicitly point to application of Article 12 of the Brussels IIa Regulation, it may be stated that the parents practically agreed on the jurisdiction of Czech courts. However, it should be further examined whether the Czech court was obliged to do so. First, it must be remembered that Article 12(3) of the Brussels IIa Regulation provides for important judicial discretion as to the condition of best/superior interest of the child and the agreement on the parties is not binding on the courts.67 On the other hand,

64 KS v Brně, 4 December 2014, 20 Co 617/2014, CZS20141204; KS v Hradci Králové, 19 December 2013, 21 Co 611/2013, CZS20131219; KS v Plzni, 29 January 2015, 15 Co 27/2015, CZS20150129; KS v Brně, 17 September 2014, 20 Co 464/2014, CZS20140917. 65 KS v Brně, 13 August 2012, 20 Co 541/2012, CZS20120813. 66 KS v Brně, 31 July 2012, 38 Co 387/2011, CZS20120731. 67 U Magnus and P Mankowski, ‘Introduction’ in U Magnus, P Mankowski (eds), Brussels IIbis Regulation. European Commentaries on Private International Law (Munich, Sellier European Law Publishers, 2012) 46; E Pataut and E Gallant, ‘Article 12’ in U Magnus, P Mankowski (eds), Brussels IIbis Regulation. European Commentaries on Private International Law (Munich, Sellier European Law Publishers, 2012) 153, 159 and 165; C González Beilfuss, ‘Prorogation of Jurisdiction’ in C Honorati (ed), Jurisdiction in Matrimonial Matters, Parental Responsibility and International Abduction: A Handbook on the Application of Brussels II-a Regulation in National Courts (Torino, Giappichelli, 2017) 194.

The Application of the EUFam’s Regulations in the Czech Republic  477 Article 17 of the Brussels IIa Regulation requires examination of the jurisdiction of the Member State courts under the Brussels IIa Regulation ex officio, including jurisdiction based on Article 12. In consequence, the examination ex officio should be extended to the conditions therein, which represent prerequisites to application of Article 12 of the Brussels IIa Regulation. The lex fori then governs ascertainment of the facts underlying examination of the conditions (how the facts should be ascertained and who has to prove the facts).68 In the Czech Republic, Article 20 of the Act on Special Court Proceedings provides for a general rule based on an investigative principle affecting specific types of Czech procedures (including parental responsibility), according to which it is the job of the court to find out all the facts essential to the decision on the merits of its own motion, irrespective of the procedural activity of the parties. Also, the parties have an obligation to affirm and prove the essential circumstances, but failure to fulfil this procedural obligation does not lead to a decision, which is to the detriment of the parties. In consequence, it may be stated that the Krajský soud v Brně should have ascertained all the facts necessary to determine the existence of the substantial connection or best interest of the child within the meaning of Article 12(3) of the Brussels IIa Regulation on its own motion. b.  Best/Superior Interest of the Child Krajský soud v Hradci Králové assessed the condition of the superior interest of the child provided in Article 12(1) of the Brussels IIa Regulation.69 In particular, according to the court, the following factors should play a role in assessing the superior interest of the child: the regularity, conditions and reasons for the stay in the territory of a Member State, the nationality of the child, the place and conditions of school attendance, the language skills, family and social ties of the child in that state. Moreover, according to the court, the physical presence of the child in a Member State is not sufficient to prove that the jurisdiction of such a Member State would be in the superior interest of the child, but other factors may suggest that the child’s presence is not only of a temporary or occasional nature, but also that the child’s residence has some integration within the social and family environment. It seems that the court practically referred to the CJEU interpretation as to habitual residence for the purpose of the assessment of existence of the condition of the superior interest of the child within the meaning of Article 12(1) of the Brussels IIa Regulation.70 In another judgment, in assessing the condition of the best interest of the child by virtue of Article 12(3) of the Brussels IIa Regulation, the Krajský soud v Plzni highlighted that the interest of the child does not have to coincide with the interest of the parents. Also, the aspects of procedural character should be reflected, eg, in what manner the Czech court would be able to ascertain the hearing of the child, in what manner the child’s guardian would cooperate with the competent authorities in the UK, 68 P Mankowski, ‘Article 17’ in U Magnus, P Mankowski (eds), Brussels IIbis Regulation. European Commentaries on Private International Law (Munich, Sellier European Law Publishers, 2012) 222. 69 KS v Hradci Králové, 19 December 2013, 21 Co 611/2013, CZS20131219. 70 As to these factors when considering habitual residence, see Case C-523/07 A (n 37); Case C-497/10 Barbara Mercredi v Richard Chaffe (n 38).

478  Lenka Válková whether the decision in the other Member State would be given within a reasonable time, where the evidence is situated, and if the parents as parties to the proceedings could be heard as well. c.  Parties to the Proceedings The other problem identified was in the context of the identification of all the parties to the proceedings, which must agree on the court’s jurisdiction of the courts according to Article 12(3) of the Brussels IIa Regulation. Krajský soud v Plzni held that although the parents accepted the jurisdiction of the Czech courts, it must be remembered that the party to the proceedings is also a child who is represented by a court-appointed guardian. Therefore, a guardian must be appointed and his or her opinion as to accepting of the jurisdiction of the Czech court must be ascertained. This interpretation corresponds to the judgment C-565/16 Alessandro Saponaro and Kalliopi-Chloi Xylina, where the CJEU, referring to the Opinion of the Advocate General Tanchev, decided that a prosecutor who, according to the national law, has the capacity of a party to the proceedings commenced by the parents, is a party to the proceedings within the meaning of Article 12(3)(b) of the Brussels IIa Regulation.71 d.  CJEU Case L v M One Czech judgment from the Krajský soud v Českých Budějovicích,72 which gave rise to the proceedings in front of the CJEU in Case C-656/13 L v M,73 regarding the interpretation of Article 12(3) of the Brussels IIa Regulation, was inserted to the EUFam’s database, as well as the judgment by the Supreme Court subsequently rendered after the CJEU rendered its judgment.74 It must be recalled that the CJEU clarified that Article 12(3) of the Brussels IIa Regulation must be interpreted as establishing jurisdiction over proceedings concerning parental responsibility in autonomous proceedings even where no other related proceedings were pending.75 Until then there was no single approach to the possibility of application of this provision also in the autonomous proceedings, which has created uncertainties in the national case law. This may be demonstrated in the judgment of the Krajský soud v Českých Budějovicích rendered before the CJEU provided interpretation in Case C-656/13 L v M (in 2013), where the Czech court stated that Article 12(3) of the Brussels IIa Regulation could not be applied since the motion to modify a custody decree had to be connected with other proceedings (for example, with divorce proceedings or paternity determination proceedings).76 It may be noted that following this CJEU judgment, Article 10(3) of the Commission’s Proposal for a Recast to the Brussels IIa Regulation eliminated any doubts in this regard by removing the wording in the text ‘proceedings other than those referred to in paragraph 1’. The Brussels IIter Regulation strengthened even more

71 Case

C-565/16 Alessandro Saponaro and Kalliopi-Chloi Xylina [2018] ECLI:EU:C:2018:265 paras 28, 29. v Českých Budějovicích, 11 April 2011, 5 Co 798/2013, CZS20130411. 73 Case C-656/13 L v M [2014] ECLI:EU:C:2014:2364. 74 Nejvyšší soud, 27 January 2015, 30 Cdo 1994/2013, CZT20150127. 75 Case C-656/13 L v M (n 73) para 52. 76 KS v Českých Budějovicích, 11 October 2013, 5 Co 2019/2013, CZS20131011. 72 KS

The Application of the EUFam’s Regulations in the Czech Republic  479 the idea of the autonomous proceedings, when Article 12(1) and 12(3) are unified into one provision on self-sufficient proceedings.77 The CJEU in the same Case C-656/13 L v M also held that where the defendant brings a second proceeding before the same court, as the plaintiff did, and pleads the lack of jurisdiction of that court, it cannot be considered that the jurisdiction of the Member State court seised by one party of proceedings in matters of parental responsibility has been ‘accepted expressly or otherwise in an unequivocal manner by all the parties to the proceedings’ according to Article 12(3)(b) of the Brussels IIa Regulation.78 The CJEU specified that this provision must be read in conjunction with Article 16 of the Brussels IIa Regulation, which requires the existence of the agreement to be shown, at latest, at the time when the document instituting the proceedings or an equivalent document is lodged with the court chosen.79 On the other hand, by argument a contrario, the CJEU held that Article 12(3)(b) of Brussels IIa Regulation must be interpreted as meaning that jurisdiction has not been accepted where the defendant in those first proceedings subsequently brings a second set of proceedings before the same court and, on taking the first step required of him in the first proceedings, pleads the lack of jurisdiction of that court.80 This might be understood as the CJEU not limiting its assessment to the time when the document instituting the proceedings was lodged with the court by virtue of Article 16 of Brussels IIa, but it refers to the other party’s conduct that took place later (in that case three and five days later).81 The Czech Supreme Court, after the CJEU gave its judgment, concluded that the projection of the CJEU interpretation into the current case revealed that the previous court of appeal’s legal conclusion regarding the jurisdiction of the Czech courts based on Article 12(3) of the Regulation was incorrect since the petitioner made an application to Okresní soud v Českém Krumlově for the sole purpose of obtaining information about the children without intention to establish proceedings before the Czech court as described in points 17–24 of the CJEU judgment. According to the Supreme Court, the jurisdiction of Czech courts based on a prorogation agreement within the meaning of Article 12(3) of the Brussels IIa Regulation cannot be established, but it does not exclude the possibility of examining jurisdiction of Czech courts under different provisions of the Brussels IIa Regulation (for example, under Articles 8 and 10 of the Brussels IIa Regulation). Unfortunately, the final judgment delivered by the court of lower instance was not published.

77 Art 10(1) of the Brussels IIter Regulation provides: ‘The courts of a Member State shall have jurisdiction in matters of parental responsibility where the following conditions are met …’. 78 Case C-656/13 L v M (n 73) paras 57 and 59. 79 ibid para 56. 80 ibid para 57. 81 The application was filed by the father of the children on 26 October 2012, the mother filed an application with the same court on 29 October 2012. On 31 October 2012, the mother stated that she did not accept international jurisdiction in the proceedings instituted by the father. See Case C-656/13 L v M (n 73) paras 19, 21 and 28. On the support of this view see Case C-565/16 Alessandro Saponaro and Kalliopi-Chloi Xylina, Opinion of Advocate General Tanchev delivered on 6 December 2017 ECLI:EU:C:2017:942, para 60, where the Advocate General stated: ‘The Court in that case did not restrict its assessment to the time the court is seised as defined by Article 16 of Brussels IIbis, namely, the ‘time when the document instituting the proceedings … [was] lodged with the court’ but also discussed the other party’s conduct that took place three and five days later’.

480  Lenka Válková

v.  Residual Jurisdiction The residual jurisdiction rule by virtue of Article 14 of the Brussels IIa Regulation was applied only in one case.82 In this custody case, Article 14 of the Brussels IIa Regulation was applied, due to the child’s habitual residence in a third state (Norway) and an impossibility to establish the jurisdiction of the Member State courts pursuant to Articles 8–13 of the Brussels IIa Regulation. Neither the 2007 Lugano Convention nor the 1996 Hague Convention on the Protection of Children could be applied, since Norway was not a Contracting State of the latter legal instrument83 and parental responsibility matters are excluded from the scope of the former legal instrument. As a consequence, the Czech Supreme Court accurately applied 1963 PIL Act through Article 14 of the Brussels IIa Regulation.

vi.  Transfer to a Court Better Placed to Hear the Case Application of Article 15 of the Brussels IIa Regulation by Czech courts was detected in the EUFam’s database in three cases. In the first case, the Krajský soud v Brně established its jurisdiction according to Article 15(3)(b) and (e) of the Brussels IIa Regulation even when the conditions for its application were not met.84 The Czech court was not requested by a German court, having jurisdiction according to the Brusels IIa Regulation, to hear the case, neither had the Czech court requested a German court to take over the jurisdiction as a better placed court. On the other hand, in other judgment the Krajský soud v Českých Budějovicích, as the court of appeal demonstrated a precise approach when it annulled the decision of the court of first instance, which established its jurisdiction under Article 8 of the Brussels IIa Regulation.85 The court of appeal ordered the court of first instance to take into consideration application of Article 15 of the Brussels IIa Regulation, since the transfer of the case to the Italian court was requested by the mother of the child in her filing within the meaning of Article 15(2)(a) of the Brussels IIa Regulation and the requirement regarding particular connection between the child and Italy could be fulfilled within the meaning of Article 15(3)(a) of the Brussels IIa Regulation since the child has moved to Italy after the Czech court was seised. Finally, in the last judgment, the Krajský soud v Českých Budějovicích stated that Article 15 could not be applied, since only the court which has jurisdiction under the

82 Nejvyšší soud, 29 May 2013, 23 Nd 64/2013, CZT20130529. 83 Norway ratified the 1996 Hague Convention on the Protection of Children on 30 April 2016, ie after the Czech Court issued judgment. 84 KS v Brně, 13 Co 83/2015, 19 November 2015, CZS20151119. It must be remembered that an alleged breach of Art 15 of the Brussels IIa Regulation by the Czech court would not allow a court of another Member State to review jurisdiction of Czech court (despite the fact that the prohibition in Art 24 of the Brussels IIa Regulation does not refer expressly to Art 15) and the court of the state in which recognition is sought would not be entitled refuse to recognise such Czech judgment solely on the ground that it considers that national or EU law was misapplied in that judgment. See Case C-455/15 PPU P v Q [2015] ECLI:EU:C:2015:763, paras 45 and 46. 85 KS v Českých Budějovicích, 7 April 2008, 5 Co 732/2008, CZS20080407.

The Application of the EUFam’s Regulations in the Czech Republic  481 Brussels IIa Regulation may transfer the case to other Member State courts, not on the contrary.86 However, it seems that the court did not reflect on the possibility to apply Article 15(2)(c) of the Brussels IIa Regulation, which allows the non-competent court to ask the permission to hear the case from the court having jurisdiction according to the Brussels IIa Regulation. Article 13 of the Brussels IIter Regulation further clarifies the current wording of forum non conveniens, providing that a Member State court not having jurisdiction may request a transfer of jurisdiction from the competent court of the Member State of the habitual residence of the child: In exceptional circumstances and without prejudice to Article 9, if a court of a Member State which does not have jurisdiction under this Regulation, but with which the child has a particular connection in accordance with Article 12(4), considers that it is better placed to assess the best interests of the child in the particular case, it may request a transfer of jurisdiction from the court of the Member State of the habitual residence of the child.

vii.  Lis Pendens and Coordination With the Third States In most of the cases, the first-seised rule of Article 19 of the Brussels IIa Regulation was properly applied.87 Possible ‘rush to court’ tactics might be perceived in one case concerning divorce proceedings due to application of Article 3 of the Brussels IIa Regulation, seising a Czech and a German court in a short period of time and subsequent properly activated lis pendens rule under Article 19 of the Brussels IIa Regulation.88 Some uncertainties in applying prior temporis lis pendens rule arose in a judgment decided by the Krajský soud v Brně where the national procedural rules were applied instead of Article 19 of the Brussels IIa Regulation.89 However, this dispute was complicated by the fact that the UK court had issued a custody order in the meantime, and thus the Czech court declined its jurisdiction and dismissed the proceedings according to the Czech procedural rules.90 One interesting judgment dealt with the relationship between the provisional and protective measure according to Article 20 and lis pendens according to Article 19 of the Brussels IIa Regulation when proceedings for obtaining an order for the provisional measure was previously instituted in Spanish court. The Supreme Court precisely stated that the proceedings initiated earlier in another Member State court concerning provisional measures in a parental responsibility matter according to Article 20 of the Brussels IIa Regulation, does not constitute an obstacle of lis pendens 86 KS v Českých Budějovicích, 14 January 2009, 5 Co 31/2009, CZS20090114b. 87 Nejvyšší soud, 16 July 2008, 4 Nd 55/2008, CZT20080716; KS v Brně, 3 June 2015, 20 Co 285/2015, CZS20150603. 88 Nejvyšší soud, 16 July 2008, 4 Nd 55/2008, CZT20080716. 89 KS v Brně, 5 August 2014, 17 Co 76/2013, CZS20140805. 90 Although there is no information in the judgment concerning the date of the commencement of the proceedings in UK (ie regarding lis pendens), the court in UK likely did not have jurisdiction with respect to custody and maintenance since the child moved to UK on 5 March 2011 and the Supreme Court of UK already issued custody and maintenance order on 20 April 2011. It must be remembered that the breach of rule on lis pendens cannot justify non-recognition of a judgment on the ground that it is manifestly contrary to public policy in that Member State, as provided by Case C-386/17 Stefano Liberato v Luminita Luisa Grigorescu [2019] ECLI:EU:C:2019:24.

482  Lenka Válková under Article 19(2) of the Brussels IIa Regulation for proceedings concerning parental responsibility matter as to determine which was initiated later in the Czech court.91 This fully corresponds to the conclusion of the CJEU in Case C-296/10 Bianca Purrucker.92 Only one Czech judgment has tackled the question of coordination with third states.93 First, it is interesting to note in this judgment that the applicant affirmed the existence of double marriages with the defendant – one in the Czech Republic and one in the United States, whereby he filed an application for divorce in front of Czech court regarding the conclusion of marriage in the Czech Republic. Unfortunately, the Krajský soud v Českých Budějovicích (court of appeal) did not deal with this alleged affirmation on double marriage and indeed in potentially non-existing parallel proceedings, but it focused on the problem regarding lis pendens in the third state. On one hand, according to the court of appeal, Article 83 of the Civil Procedure Code governing lis pendens may be applied only with respect to the Czech courts, but the obstacle of lis pendens governing parallel proceedings between the Member States in light of Article 19 of the Brussels IIa Regulation does not cover the situation when the second seised court is situated outside the EU. Therefore, there are no conditions for dismissal of divorce proceedings. On the other hand, the court of appeal ordered the court of first instance to assess the stay of proceedings by virtue of the Opinion of the Supreme Court from 1987 titled ‘Some questions on the interpretation and use of legal relations with international element in civil proceedings and proceedings before state notaries’ relating to the 1963 Czech PIL Act.94 The Supreme Court assumed the opinion that in a situation of lis pendens where a proceeding is already pending in front of a foreign state, the Czech court should consider the possibility to stay the divorce proceedings according to the national procedural lex fori (Article 109(2)(c) of the Civil Procedure Code) and such cannot be considered as an obstacle of lis pendens within the meaning of Article 83 of the Civil Procedure Code. According to the Opinion of the Supreme Court, Article 68(1) of 1963 PIL Act should be reflected by the Czech courts,95 which must also examine whether the exclusive jurisdiction of a foreign state was established as a consequence of prorogation of jurisdiction. Therefore, it seems that in the current 91 Nejvyšší soud, 26 February 2014, 30 Cdo 2554/2013, CZT20142602. 92 Case C-296/10 Bianca Purrucker v Guillermo Vallés Pérez [2010] ECR I-11163, ECLI:EU:C:2010:665. 93 KS v Českých Budějovicích, 14 August 2008, 5 Co 1611/2008, CZS20080814. 94 Opinion of Nejvyšší soud, Cpjf 27/86 R 26/1987 civ. ‘K některým otázkám výkladu a používání právní úpravy vztahů s mezinárodním prvkem v občanském soudním řízení a v řízení před státním notářstvím’. 95 In particular, Art 68(1) of 1963 PIL Act provided that in cases when all parties were nationals of that state which issued a judgment, the judgments relating to matters concerning dissolution of marriage, legal separation, the declaration of a marriage as invalid and the designation of whether or not a marriage exists had the same legal effects as the Czech judgments if they were not contrary to Czech public policy. Almost the same wording can be found in Art 52 of the new Czech PIL Act, which provides: ‘If all of the participants in the proceedings were citizens of the state which issued the judgement, foreign judgements pertaining to the matters set out in section 51 will have the same legal effects in the Czech Republic as final and conclusive judgements of the Czech courts without the need for any further proceedings’. On the official translation provided by the Czech Ministry of Justice at obcanskyzakonik.justice.cz/index.php/home/zakonya-stanoviska/preklady/english. Although Art 52 of the new Czech PIL Act, contrary to Art 68(1) of 1963 PIL Act, does not refer to Czech public policy expressly, Art 52 of the new Czech PIL Act represents lex specialis to Art 16 (recognition of foreign judgments on other matters) and indeed, the Czech court must examine also the non-existence of ground for refusal of recognition ex Art 4 of the new Czech PIL Act, ie the non-existence of manifest contradiction with public policy, see T Břicháček ‘§ 52’ in P Bříza, T Břicháček, Z Fišerová et al (eds), Zákon o mezinárodním právu soukromém (Praha, CH Beck, 2014) 276.

The Application of the EUFam’s Regulations in the Czech Republic  483 case, the court of first instance, which was requested to reassess the case, was entitled to stay divorce proceedings in favour of the US court according to Article 109(2)(c) of the Civil Procedure Code if: (i) the proceedings were already before a US court; (ii) there was a prorogation of jurisdiction in favour of the US court; or/and (iii) if the judgment of the US court might be recognised in the Czech Republic under Article 68(1) of 1963 PIL Act (nb, all parties were US nationals; the judgments related to matters concerning dissolution of marriage, legal separation, the declaration of a marriage as invalid and the designation of whether or not a marriage exists; and the US judgment was not contrary to Czech public policy).

viii.  Provisional and Protective Measures Czech courts in most cases demonstrated a good judicial attitude as to the exercise of jurisdiction concerning provisional and protective measures, either by the court competent as to substance,96 or according to Article 20 of the Brussels IIa Regulation.97 In one judgment, the Constitutional Court qualified the prohibition to travel with the child abroad without the prior consent of both the parents as a protective measure in accordance with Article 20 of the Brussels IIa Regulation. The Constitutional Court expressed its opinion that the limitations of fundamental rights and freedoms provided by provisional and protective measure was justified by the state’s duty to establish a fair process in accordance with its positive obligations in the field of fundamental rights and freedoms in order to achieve the objective, which is the right to the lawful judge (in the present case, a court in whose jurisdiction the child is habitually resident in accordance with the will of the parents). Therefore, according to the Constitutional Court the urgency requirement as a condition for application of Article 20 of the Brussels IIa Regulation was fulfilled due to a well-founded fear regarding the child’s abduction abroad.98

ix.  Recognition and Enforcement Only two Czech judgments in the EUFam’s database dealt with the recognition and enforcement of judgments. The restrictive interpretation to refuse the recognition of a judgment was assumed by the Krajský soud v Hradci Králové which stated that failure to notify a party to the divorce proceedings of the final divorce judgment did not constitute a reason for refusal of recognition of such decision, which was rendered by a Polish court.99 The second judgment as to recognition and enforcement was rendered by the Constitutional Court which held that Czech ordinary courts did not respect their obligations following from the EU law, when they refused to recognise and enforce the 96 KS v Českých Budějovicích, 5 April 2011, 5 Co 781/2011, CZS20110405. 97 On the interpretation of the protection measure in context of possibility of future wrongful removal see Ústavní soud, 3 March 2011, II. ÚS 2471/10, CZC20110303. On the good attitude see KS v Českých Budějovicích, 14 January 2009, 5 Co 32/2009, CZS20090114c. 98 Ústavní soud3 March 2011, II. ÚS 2471/10, CZC20110303. 99 KS v Hradci Králové, 3 January 2011, 26 Co 532/2010, CZS20110103;

484  Lenka Válková return order rendered by the court in the UK (the child’s habitual residence according to Articles 8 and 10 of the Brussels IIa Regulation) in contradiction with Article 42(1) of the Brussels IIa Regulation.100 In addition, the Czech courts of lower instances declared their jurisdiction, autonomously evaluated habitual residence of the child and reached a conclusion on non-wrongfulness of child’s removal and retention in the Czech Republic. It is necessary to agree with the Constitutional Court that the Czech courts of lower instance seised in the proceedings for the return of the child were obliged to proceed according to Article 11 of the Brussels IIa Regulation and had competence only refuse to return a child. However, it must be remembered that the ‘fast track’ enforcement procedure under Article 42(1) of the Brussels IIa Regulation may be applied only in the event of the return of a child following a judgment ordering non-return referred to in Article 11(8) of the Regulation.101 From the judgment, it seems that no previous non-return order had been issued and therefore, the authenticity of the certificate as provided in annex IV of the Brussels IIa Regulation might come into question. Otherwise, it is neccessary to agree with the Constitutional Court, since no opposition to the recognition of the return order is permitted, and the requested court must only declare the enforceability of the certified decision and to allow the immediate return of the child.102 Moreover, the Constitutional Court decided that the finding of the Member State court as to the habitual residence of the child in the return order is binding on the Czech courts and prevents them from reassessing the finding as to the habitual residence of the child.103 This statement of the Constitutional Court, confirming the binding nature of the finding of habitual residence in the return order assumed by the other Member State court, was also extended to the proceeding for parental responsibility.104

B.  Maintenance Regulation i.  Scope of Application Although no particular problems have emerged from the case law as to the scope of the Maintenance Regulation,105 in one case, the jurisdiction for parental responsibility was extended to the jurisdiction to the related maintenance matters without examining whether the case falls into the scope of the Maintenance Regulation.106 Moreover, the maintenance obligations were sometimes exchanged with the parental responsibility matters resulting in misapplication of the Maintenance Regulation.107 In one case, the

100 Ústavní soud, 8 September 2015, II.ÚS 3742/14, CZC20150908. 101 Case C-195/08 PPU Inga Rinau [2008] ECLI:EU:C:2008:406, paras 58–78. 102 ibid, para 89. 103 This may be perceived to be partially in line with Case C-456/11 Gothaer Allgemeine Versicherung AG and Others v Samskip GmbH [2012] ECLI:EU:C:2012:719, where the CJEU held that the court’s decision to decline jurisdiction, contained in the operative part of the judgment, and also the finding (on the validity of that clause) contained in the ratio decidendi binds the courts of the other Member States. 104 Ústavní soud, 13 June 2017, IV. ÚS 1309/17, CZC20170613. 105 KS v Brně, 26 November 2013, 20 Co 235/2013, CZS20131126; KS v Brně, 8 September 2015, 20 Co 258/2015, CZS20150908. 106 KS v Brně, 24 March 2015, 20 Co 441/2014, CZS20150324. 107 KS v Brně, 31 March 2015, 20 Co 674/2014, CZS20150331.

The Application of the EUFam’s Regulations in the Czech Republic  485 Krajský soud v Brně exercised its jurisdiction concerning a (negative) claim on modification of maintenance, brought by the debtor who was habitually resident in the United States while the creditor was habitually resident in the Czech Republic, on the basis of the 1996 Hague Convention on the Protection of Children instead of the Maintenance Regulation.108 According to the court, since the United States was not a Member State of the EU, the Brussels IIa Regulation could not be applied.109 Therefore, it seems that the court erroneously referred to Articles 5 and 15 of the 1996 Hague Convention on the Protection of Children through which it established its jurisdiction and applied Czech law. One case also identified difficulty as to the temporal scope application. However, although the court of first instance wrongly applied Article 5(2) of the Brussels IIa Regulation to the proceedings instituted after 18 June 2011, the court of appeal then properly pointed to the Maintenance Regulation.110

ii.  General Grounds of Jurisdiction The problematic understanding of alternative criteria of jurisdiction laid down in Article 3 of the Maintenance Regulation arose in a judgment of the Krajský soud v Brně. In this case, application for a reduction in the amount of maintenance payable was brought by the father, who was habitually resident in the Czech Republic. The court of first instance declared it lacked jurisdiction under Article 3(b) of the Maintenance Regulation since, according to this court, jurisdiction shall lie with the court in a place where the child is habitually resident.111 Krajský soud v Brně, as a court of appeal, stressed that Article 3 of the Maintenance Regulation sets out alternative criteria of jurisdiction and established its jurisdiction according to Article 3(a) of the Maintenance Regulation (allowing for jurisdiction at the place ‘where the defendant is habitually resident’). According to the court of appeal, the defendant shall be understood as a person against whom the maintenance claim has been made or who is obliged to pay maintenance or who owes maintenance. However, such interpretation provided by the court of appeal seems to be doubtful. Article 3(a) of the Maintenance Regulation should correspond to the ‘old’ general jurisdictional rule provided in Article 2 of the Brussels I Regulation. Therefore, the defendant should not be understood as a debtor, but as a defendant in the individual maintenance proceedings and the procedural position of the parties should be respected. In consequence, in cases where a debtor represents an applicant in the specific maintenance proceedings, a defendant under Article 3(a) of the Maintenance Regulation represents a creditor of the maintenance proceedings under Article 3(b) of the Maintenance Regulation and Article 3(a) and 3(b) of the Maintenance Regulation merge. This corresponds to the ratio of the Maintenance Regulation, where the ‘choice’ of competent Member State courts in Article 3 of the 108 Maintenance obligations are explicitly excluded from the application in Art 4(e). 109 The same judgment regarding application of the 1996 Hague Convention on the Protection of Children instead of the Maintenance Regulation, in respect of the modification of the allowance requested by the creditor habitually resident in the Czech Republic and debtor habitually resident in Canada, was issued by KS v Brně, 18 November 2014, 20 Co 482/2014, CZS20141118. 110 KS v Brně, 3 September 2014, 21 Co 327/2014, CZS20140903. 111 KS v Brně, 11 September 2012, 20 Co 668/2012, CZS20120911.

486  Lenka Válková Maintenance Regulation should guarantee seising the most favourable court by virtue of the principle a favore creditoris, not on the contrary.

C.  Hague Maintenance Protocol The 2007 Hague Maintenance Protocol was mentioned in only three judgments, but was only properly applied in two judgments.112 The judgment, in which the imprecise application was identified, concerned application of lex fori instead of application of Article 15 of the Maintenance Regulation, which refers to the 2007 Hague Maintenance Protocol.113

III.  Concluding Remarks It seems difficult to make general conclusions regarding the application of the EU Regulations on family matters across all levels of instances of the Czech courts on the basis of a limited number of judgments collected in the EUFam’s project. In general, the Czech courts demonstrated sufficient knowledge with the EU Regulations. However, in specific judgments, mainly Czech courts of first instance referred to improper legal instruments, or did not even examine the jurisdiction or applicable law. Furthermore, difficulties stem from the multiple international legal instruments in family matters and the fragmentation of the family law rules among the different legal instruments – Czech courts of first instance often mixed different matters of family law together, which resulted in improper application of only one of the relevant EU legal instruments. The courts of appeal demonstrated a good attitude, by frequently vacating or even overruling such decisions of the court of first instance and accurately pointed out the relevant EU Regulations. Another conclusion that can be deduced from the Czech case law collected within the EUFam’s – it seems that the courts of lower instance did not mention the CJEU case law very often in their judgments. On the other hand, it might be surprising that they drew attention to the interpretation provided by the Czech Supreme Court, which is based on CJEU interpretation (eg, interpretation of habitual residence of the child), instead of direct reference to the CJEU case law. Moreover, due to the fact that in the public and private databases, which are used by legal practitioners, many judgments of Czech courts of appeal may be found, in the absence of no subsequent overruling judgments of the Supreme Court, such decisions are followed by other Czech courts of lower instance. This situation might cause a negative effect, when opinions formulated in the judgments of the courts of appeal are not well-founded or convincing (ie, a judgment regarding the possibility of double habitual residences of the child).

112 KS v Brně, 26 November 2013, 20 Co 235/2013, CZS20131126; KS v Brně, 8 September 2015, 20 Co 258/2015, CZS20150908. 113 KS v Brně, 3 October 2014, 14 Co 70/2014, CZS20141003. The court of appeal applied the Maintenance Regulation, but did not mention the necessity of determining the law applicable to maintenance.

32 The Application of the EUFam’s Regulations in Germany MIRJAM ESCHER

I. Introduction The consistency of German case law in European Family Law has improved substantially over the last 10 years. At the beginning cases had been predominantly evolving around groundwork issues such as the fundamental understanding of the term ‘habitual residence’ both regarding jurisdiction and applicable law. Now, increasing immigration during recent years has shifted the focus to issues such as the jurisdiction over private divorces and the significance of talaq as well as the question of a child’s maturity with regards to the application of the Brussels IIa Regulation. This chapter depicts the most important German court decisions concerning the Brussels IIa Regulation, the Rome III Regulation, the Maintenance Regulation, the 2007 Hague Maintenance Protocol and the Succession Regulation. It provides a short overview of this case law classified in issues concerning the scope of application, jurisdiction and applicable law as well as recognition and enforcement. The cases referred to are all part of the case law database developed in the course of the ‘Planning the Future of Cross-Border Families: A Path Through Coordination’ EUFam’s project.

II.  The Scope of Application Regarding the Regulations’ scope of application one of the most controversially discussed matters in European Family Law in the last three years was the concept of private divorce. There have been two particularly interesting decisions concerning the Rome III Regulation, one of which led to a preliminary ruling of the European Court of Justice (CJEU). The Oberlandesgericht München1 decided the case of a couple that had been married in Syria in 1999. The husband obtained German citizenship in 1977, his wife after their marriage. Until 2003, the couple lived in Germany and then moved

1 OLG

München, 2 June 2015, 34 Wx 146/14, DES20150602.

488  Mirjam Escher to Homs, Syria. Due to the civil war in Syria, they eventually moved back to Germany. In May 2013, the husband declared the divorce through a representative before the religious Sharia court in Latakia, Syria. The recognition of the divorce was established by the Oberlandesgericht München in November 2013. By request of February 2014, the wife then claimed that the requirements for the recognition of the divorce were not met as they conflicted with German law. The Oberlandesgericht München subsequently put – inter alia – the following question to the CJEU: does the scope of the Rome III Regulation, as defined in its Article 1, include ‘private divorce’ – in this instance one pronounced before a religious court in Syria on the basis of Sharia law? The CJEU answered that: Article 1 of Regulation No 1259/2010 must be interpreted as meaning that a divorce resulting from a unilateral declaration made by one of the spouses before a religious court, such as that at issue in the main proceedings, does not come within the substantive scope of that regulation.2

The court argued that the wording of the Regulation speaking of ‘courts’ and ‘procedures’ points to divorces that have been executed by courts or official authorities. Further, Recital 10 of the Regulation states ‘[t]he substantive scope and enacting terms of this Regulation should be consistent with Regulation (EC) No 2201/2003’. Article 2(a) of the Brussels IIa Regulation defines ‘judgment’ as a ‘divorce … pronounced by a court of a Member State, whatever the judgment may be called, including a decree, order or decision’. As the terms of these Regulations are not supposed to deviate, private divorces cannot fall in their scope. In line with this reasoning, the requesting Oberlandesgericht München stated that the applicable law could not be determined through the Rome III Regulation in the case concerned.3 It reiterates that even though the divorce had been declared by a religious court, it still had been executed through the pronunciation of the repudiation (talaq) and was therefore private.4 As the German legislator had assumed that the Regulation would cover all kinds of divorces, the German conflict-of-law rules show an unintended gap in this respect. Scholars thereby propose the analogous application of the Rome III Regulation. But it is not clear which of the provisions of the Regulation are supposed to be applied. To apply the Regulation in full would directly contradict the statements made by the European Court of Justice. Further, the lively discussion in German literature shows that private divorces are indeed not comparable to divorces executed by courts or official authorities.5 Eventually, the legislature will have to answer these questions. The Oberlandesgericht München therefore applied Article 14 of the Introductory Act to the German Civil Code (EGBGB) which applies to the effects of marriage. Pursuant to this provision German law was applicable as both parties were German citizens at the time of the divorce. Procedurally, German law does not recognise private divorces under these circumstances. The appeal was therefore successful.



2 Case

C-372/16 Soha Sahyouni v Raja Mamisch [2017] ECLI:EU:C:2017:988. München, 14 March 2018, 34 Wx 146/14, DES20180314. 4 OLG München, 14 March 2018, 34 Wx 146/14, DES20180314. 5 cf OLG München, 14 March 2018, 34 Wx 146/14, DES20180314. 3 OLG

The Application of the EUFam’s Regulations in Germany  489 Facing the same issue in another case, the Oberlandesgericht Düsseldorf6 stated that until the German legislator can fill the gap, the court will apply Rome III Regulation Articles 5–8 analogously. Whether other provisions of the Regulation could be applied as well did not have to be decided in the matter concerned. After stating this reasoning, which conflicts with the Oberlandesgericht München, the Court held the old version of the EGBGB to be applicable as the private divorce was executed before the Rome III Regulation came into force. It is still noteworthy that both courts contradict each other’s reasoning while both pointing to the decision of the CJEU. These decisions are thereby an important call to the German legislature to answer the question of the law applicable to private divorces. Other decisions on the Regulations’ scope of application have been less controversial. Regarding the Brussels IIa Regulation the Oberverwaltungsgericht Lüneburg reiterated that the term ‘civil matters’ in Brussels IIa Regulation Article 1 is to be interpreted in a way that it can also comprise matters that are a part of public law in the Member States.7 Regarding the Maintenance Regulation, the Oberlandesgericht Stuttgart underlined that pursuant to Article 60(a) of the Brussels IIa Regulation it has priority only in relation to EU Member States. In this case, the child’s new habitual residence was in Turkey and the 1961 Hague Convention on the Protection of Infants therefore took priority over the Brussels IIa Regulation.8

III.  Matters Related to Jurisdiction The one topic that has been raised numerous times and dominated case law is the term of ‘habitual residence’ and its application pursuant to the different Regulations. The extent to which it can or should be harmonised has, in particular, led to discussions at the German Exchange Seminar.9 In this regard, the Succession Regulation has recently provided additional material for discussions.

A.  Habitual Residence On a general note, German case law defines the place of habitual residence as depending on the centre of one’s social life.10 Thereby, the intention of a person to settle down 6 OLG Düsseldorf, 15 February 2018, I-13 VA 6/16, DES20180215. 7 Oberverwaltungsgericht Lüneburg, 20 January 2016, 4 LB 14/13, DEA20160120 citing CJEU, in Case C-523/07 A [2009] ECR I-2805, ECLI:EU:C:2009:225; dissenting Verwaltungsgericht Augsburg, 13 April 2015, Au 3 E 15.251, DEA20150413 stating that pursuant to its Art 1(1) and (2) the Brussels IIa Regulation was only applicable in matters of family law as a part of civil law and not in administrative proceedings. 8 OLG Stuttgart, 12 April 2012, 17 UF 22/12, DES20120412; cf Kammergericht Berlin, 2 March 2015, 3 UF 156/14, DES20150302 in relation to Russia. 9 MJ Escher and J Wittmann, Report on German Good Practices (EUFam’s Project, 2016) 11 at www.eufams. unimi.it/wp-content/uploads/2017/01/EUFAMS-German-report-on-good-practices.pdf. 10 OLG Köln, 22 May 2017, II-10 UF 46/17, DES20170522; OLG Stuttgart, 12 April 2012, 17 UF 22/12, DES20120412; OLG Karlsruhe, 5 June 2015, 18 UF 265/14, DES20150605; OLG Karlsruhe, 5 March 2012, 18 UF 274/1, DES20120305; OLG Stuttgart, 30 March 2012, 17 UF 338/11, DES20120330.

490  Mirjam Escher is not crucial.11 Further, the duration and the circumstances of a stay must be taken into consideration.12 However, the stay can be temporary as long as it leads to social integration. In matrimonial matters under the Brussels IIa Regulation, a purely professional stay is not sufficient, but must be accompanied by social interaction to establish a habitual residence. Persons who still commute between old and new residences have not yet manifested a new habitual residence. It is necessary to form more personal relations in the new environment than still exist in the old one.13 Regarding a child’s habitual residence, the distinction can be especially difficult. Important aspects are whether the child visits a school in a country, engages in school activities there and learns the respective language.14 As such factors are hard to determine in a child as young as two years, the establishment of a new habitual residence of a young child can be usually expected after six months.15 This time frame is justified as young children settle down fast in a new environment and therefore a certain social integration usually exists after such a period of time.16 In addition to this established case law, the recently enforced Succession Regulation has brought new issues to light. It was already anticipated by the German Exchange Seminar that the unique aspects of succession would influence the definition of ‘habitual residence’. Prima facie the term in Article 4 is identical with Article 8 of the Brussels IIa Regulation, but there are certain challenges that are newly introduced by the Succession Regulation. During the German Exchange Seminar, the expert on successions addressed the problematic scenario of a pensioner being moved to a favourable legal system by the potential heirs.17 In this context, it was discussed whether the habitual residence under the Succession Regulation requires a voluntary element which prevents the habitual residence from changing after a person has lost the capacity to draft a will.18 Only a few months after this discussion, the Oberlandesgericht München raised these matters. The case before the Court concerned the term ‘habitual residence’ according to Article 343(1) of the Act on Court Procedure in Family Matters and Non-Litigious Matters (‘FamFG’). This provision stipulates that the court has jurisdiction in whichever district the deceased was habitually resident at the time of death. The provision was introduced following the drafting of the Succession Regulation and is to be interpreted in line with the Regulation and its Article 4 as well as Recitals 23 and 24. Therefore, the court discussed how the term should be defined under the Regulation. It carried out an overall assessment of the circumstances of the life of the deceased during the years preceding his death and at the time of his death, taking account of all relevant factual elements, especially the duration and regularity of the deceased’s presence in 11 OLG Stuttgart, 30 March 2012, 17 UF 338/11, DES20120330. 12 Case C-523/07 A (n 7); OLG Köln, 22 May 2017, II-10 UF 46/17, DES20170522. 13 OLG Köln, 22 May 2017, II-10 UF 46/17, DES20170522. 14 OLG Stuttgart, 12 April 2012, 17 UF 22/12, DES20120412; OLG Stuttgart, 6 May 2014, 17 UF 60/14, DES20140506; cf OLG Koblenz, 18 March 2015, 13 UF 825/14, DES20150318 for Art 3(b) Maintenance Regulation. 15 OLG Karlsruhe, 5 June 2015, 18 UF 265/14, DES20150605; OLG Stuttgart, 30 March 2012, 17 UF 338/11, DES20120330. 16 OLG Stuttgart, 30 March 2012, 17 UF 338/11, DES20120330. 17 Escher and Wittmann (n 9) 11. 18 Ibid.

The Application of the EUFam’s Regulations in Germany  491 the state concerned, the close connection to this state, the language skills and the place of assets. Thus, habitual residence under the Succession Regulation depends on where the centre of interest of the deceased and his social life was located.19 In this regard, it perfectly lines up with the case law established for the other Regulations. Additionally, the Oberlandesgericht München found that a subjective element, namely the will to be and stay somewhere, is necessary. Otherwise questions concerning a forced habitual residence could not be answered. A will to choose one’s centre of life in the legal sense is not necessary, but the deceased must be able to form decisions. If he loses this ability, he cannot change his habitual residence any more. Thereby, the last place at which the deceased had this power of will is decisive. As habitual residence is something factual, legal representation is not possible. Otherwise a caregiver could choose the applicable law.20 It will be interesting to see if this case law will establish itself quickly or will be questioned by other courts. Apart from the question of how to define the term ‘habitual residence’, the point in time of its assessment was clarified by the Bundesgerichtshof.21 In the case concerned, a child had moved to Austria at the time the first instance court was seised, but later returned to Germany. The Bundesgerichtshof elaborated on the end of the proceedings being the crucial point in time for the determination of a child’s habitual residence.22 This might seem to contradict Article 8 Brussels IIa Regulation which attributes jurisdiction to the Member State in which the child is habitually resident at the time the court is seised. However, the Bundesgerichtshof explains in its ruling that this provision merely safeguards the jurisdiction of the court in case of a change of residency after the commencement of the proceedings (perpetuatio fori). It is not intended to prevent the first establishment of a court’s jurisdiction after the beginning of the proceedings.23 The Court thereby reiterated the general legal principle according to which all legal requirements of international jurisdiction must be fulfilled at the time which is decisive for the court’s findings (in Germany: the date of the last oral hearing).

B.  Age of Maturity and Brussels IIa Regulation A matter German courts were debating in 2017–2018 is the question of jurisdiction as well as the applicable law in cases of parental responsibility for young refugees coming from the Republic of Guinea.24 The young people had been equipped with legal guardians. After they turned 18, the question of maturity arose. All four courts were united in the matter of international jurisdiction. On one hand, if Article 8 of the Brussels IIa

19 OLG München, 22 March 2017, 31 AR 47/17, DES20170322; cf OLG Hamm, 10 W 35/17, 02 January 2018, DES20180102, which for example refers to an address that was provided as ‘temporary’ and therefore did not help to establish a habitual residence. 20 OLG München, 22 March 2017, 31 AR 47/17, DES20170322. 21 BGH, 17 February 2010, XII ZB 68/09, DET20100217. 22 BGH, 17 February 2010, XII ZB 68/09, DET20100217. 23 BGH, 17 February 2010, XII ZB 68/09, DET20100217. 24 OLG Hamm, 03 March 2017, II-10 UF 6/17, DES20170503; OLG Karlsruhe, 07 September 2017, 18 WF 62/17, DES20170907; BGH, 20 December 2017, XII ZB 333/17, DET20171220; OLG Hamm, 20 February, 2018, II-4 UF 243/16, DES20180220.

492  Mirjam Escher Regulation was applicable, German courts would have jurisdiction in these type of cases as the adolescents habitually resided in Germany. But the crucial question was the applicability of the Brussels IIa Regulation to a person that is not legally a minor pursuant to German law. On the other hand, if the law of the Republic of Guinea was applicable, the age of maturity might be 21 leading to another outcome both in jurisdiction and substantive law. The question of maturity is thus relevant on both levels. Therefore, German jurisdiction must be assumed in order to solve the question on the merits.25 These decisions reiterate the importance of a harmonic decision on jurisdiction and merits. They show that the question of maturity must be answered for consistent proceedings.

C.  Prorogation of Jurisdiction The prorogation of jurisdiction has mainly been an issue before German courts if the jurisdiction was assessed under Article 12 Brussels IIa Regulation26 or Article 5 of the Maintenance Regulation. In the cases regarding maintenance issues, the respective defendant had entered an appearance before German courts without immediately challenging their jurisdiction.27 As a result, a further determination of jurisdiction was deemed unnecessary. The Oberlandesgericht Koblenz28 clarified that jurisdiction is not challenged ‘immediately’ if such an objection has not been brought forward in the defendant’s first assertion according to the national procedural law. For this, the Court points to the CJEU decision in Elefanten Schuh v Jacqmain.29

D.  Child Abduction Cases of child abduction highlight the interplay of the 1980 Hague Child Abduction Convention and the Brussels IIa Regulation.30 In a case before the Oberlandesgericht Brandenburg the court ordered the defendant to return the children to France as their former place of habitual residence pursuant to Article 12(1) in conjunction with Article 3 of the 1980 Hague Child Abduction Convention. In this regard the Court stressed that it is not the intention of the 1980 Hague Child Abduction Convention and the Brussels IIa Regulation to forego custody proceedings, but only to secure them.31 25 OLG Karlsruhe, 07 September 2017, 18 WF 62/17, DES20170907; BGH, 20 December 2017, XII ZB 333/17, DET20171220; cf OLG Bremen, 07 February 2017, 5 UF 99/16, DES20170207 for the Republic of The Gambia. 26 cf for example Amtsgasericht Steinfurt, 08 January 2008, 10 F 9/07, DEF20080108, stressing that Art 19 cannot be applied as long the jurisdiction can be determined through Art 12. 27 OLG Koblenz, 18 March 2015, 13 UF 825/14, DES20150318; OLG Stuttgart, 17 January 2014, 17 WF 229/13, DES20140117. 28 OLG Koblenz, 18 March 2015, 13 UF 825/14, DES20150318. 29 Case C-150/80 Elefanten Schuh GmbH v Pierre Jacqmain [1981] ECR 1671, ECLI:EU:C:1981:148 para 17. 30 OLG Brandenburg, 22 September 2006, 15 UF 189/06, DES20060922; OLG Düsseldorf, 4 March 2008, II-1 UF 18/08, DES20080304. 31 OLG Brandenburg, 22 September 2006, 15 UF 189/06, DES20060922.

The Application of the EUFam’s Regulations in Germany  493 The child’s abduction must be undone as fast as possible, but the question of custody has to be answered independently. Thereby, a regulatory system in the field of child abduction is created, which sanctions child abduction and simultaneously safeguards the child’s interests. In another case, the defendant did not actively take but kept the children in Germany. She thereby violated the applicant’s custody rights.32 Both cases show that the established regulatory system is in principle successful in undoing the child’s abduction and enabling custody proceedings.

E.  Lis Pendens The question of lis pendens was raised in a few cases regarding the Brussels IIa Regulation. Pursuant to Article 19(1) it is crucial which of two motions concerning the same dispute between the same parties was brought forward first. The court second seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.33 The decisive point in time of the court being seised is determined pursuant to Article 16 Brussels IIa Regulation.34 According to this provision, it is decisive which application was delivered to the court first and if the applicant did everything to inform the defendant of the application.35 Thus, Article 19(1) of the Brussels IIa Regulation operates on the principle of strict priority, which is a proper way to safeguard a clear distribution of competence.36 The court second seised has to await the other court’s decision. Where the jurisdiction of the court first seised is established, the court second seised shall decline jurisdiction in favour of that court.37 The Oberlandesgericht Stuttgart38 elaborates that according to the case law of the CJEU,39 jurisdiction is already established when the court first seised omits to decline jurisdiction of its own motion and none of the parties raise such a claim in time for the first action of defence. After this point in time a legally binding decision of the court is necessary, unless the court no longer sees any need to adjudicate the action. The Oberlandesgericht Stuttgart established this in a case dealing with an application for legal aid before the court second seised. It reiterated in this regard that Brussels IIa Regulation Article 19 only stipulates that the court second seised shall stay the proceedings. After a ruling of the court first seised on its jurisdiction the court second seised is free to hear the matter. The court second seised could not anticipate this ruling on the jurisdiction and, therefore, the application for legal aid had to be granted.40 The Court thereby safeguarded the instrument of legal aid which is decisive to ensure the access to court for everyone.

32 OLG Düsseldorf, 4 March 2008, II-1 UF 18/08, DES20080304. 33 OLG Zweibrücken, 10 March 2006, 6 WF 41/06, DES20060310; OLG Zweibrücken, 22 May 2015, 2 UF 19/15, DES20150522; OLG Stuttgart, 12 May 2016, 17 WF 239/15, DES20160512. 34 OLG Stuttgart, 12 May 2016, 17 WF 239/15, DES20160512. 35 OLG Zweibrücken, 22 May 2015, 2 UF 19/15, DES20150522. 36 OLG Zweibrücken, 10 March 2006, 6 WF 41/06, DES20060310. 37 OLG Zweibrücken, 22 May 2015, 2 UF 19/15, DES20150522. 38 OLG Stuttgart, 12 May 2016, 17 WF 239/15, DES20160512. 39 Case C-489/14 A v B [2015] ECLI:EU:C:2015:654 para 34. 40 OLG Stuttgart, 12 May 2016, 17 WF 239/15, DES20160512.

494  Mirjam Escher In other cases, courts defined the circumstances under which Brussels IIa Regulation Article 19 does not apply. The Oberlandesgericht München stressed in a case of divorce and separation proceedings that Article 19 of the Regulation only applies to dependent proceedings in different Member States.41 In the case concerned, both proceedings were pending in Germany. The Kammergericht Berlin established that Brussels IIa Regulation Article 19 cannot be applied in relation to Switzerland as it is not a Member State. It reiterated that it is essential for legal certainty to refrain from applying the Brussels IIa Regulation to nonMember States and to apply the Regulation on a case-by-case basis. It is the task of the national legislatures to change the national laws on lis pendens, if necessary. An analogous application of a Regulation would only hinder a clear demarcation of international jurisdiction.42

IV.  Matters Related to Applicable Law A.  Choice of Law In a case before the Oberlandesgericht Hamm the Court interpreted a marriage certificate as choice-of-law agreement in favour of Iranian law pursuant to Article 5 of the Rome III Regulation. It elaborated that the agreement included numerous notions of Iranian law as the conditions agreed upon were the same conditions stipulated in Articles 1133, 1134 and 1138 of the Iranian Civil Code. Therefore, even though the parties did not consider explicitly choosing Iranian law, the wording was a strong indication for their will to handle the matter pursuant to Iranian law.43 In another the case the Oberlandesgericht Nürnberg explained that the parties were able to form a choice-of-law agreement even if the proceedings had already commenced. Article 5(3) of the Rome III Regulation stipulates that if the law of the forum provides for it, the spouses may also designate the law applicable before the court during the course of the proceedings. The Court explained that Article 46(d)(2) EGBGB44 then provided such a deviating rule.45 Both cases show the successful implementation of Article 5 of the Rome III Regulation to uphold party autonomy and enable an efficient realisation of the parties’ wishes.

B.  Habitual Residence The applicable law is determined pursuant to the place of habitual residence as well, making it the decisive aspect in determining the international jurisdiction as well as the

41 OLG

München, 20 December 2013, 12 UF 1731/13, DES20131220. Berlin, 3 February 2016, 3 UF 78/15, DES20160203. 43 Oberlandesgericht Hamm, 7 May 2013, 3 UF 267/12, DES20130507. 44 Old version in force until 1 July 2018, now Art 46(e)(2) EGBGB. 45 OLG Nürnberg, 31 January 2013, 7 WF 1710/12, DES20130131. 42 Kammergericht

The Application of the EUFam’s Regulations in Germany  495 law applicable and unifying forum and ius. The most relevant provisions are Article 3 of the 2007 Hague Maintenance Protocol46 (in conjunction with Article 15 Maintenance Regulation)47 and Article 8 of the Rome III Regulation.48 New aspects are and will in the future be raised by the Succession Regulation. The Amtsgericht Hamburg-Wandsbek49 had to decide a case in which the deceased had written a last will together with her husband in 1967 in Chicago. Both were German citizens. The husband had passed away in 1968. The deceased moved back to Germany thereafter. In 2018, the interpretation of the testament was in question. In principle Article 21 of the Succession Regulation stipulates that the law of the state, in which the deceased was habitually resident at the time of death, is applicable. This would be German law in the case concerned. But pursuant to Article 24 of the Succession Regulation the question of substantive validity of a disposition of property upon death is governed by the law which would have been applicable to the succession if the testator had died on the day on which the disposition was made. Article 26(1)(d) of the Succession Regulation makes clear that the interpretation of the testament is part of its substantive validity. It thereby points back to Article 21(1) of the Succession Regulation which again stipulates that the law of the state in which the testator was habitually resident is applicable. This was Illinois at the time the disposition was made. That raised problems as the interpretation of the testament back in 1967 would have been governed by German law. Art 24(1) EGBGB (old version), which applied at that time, stipulated that the testament of a German citizen was governed by German law. Only the Succession Regulation changed this legal situation when it entered into force in 2015. This situation contradicts the goal of legal certainty pursued by the Succession Regulation as shown in Recital 48. Further, the interpretation of a testament can only be done ex ante and not pursuant to a Regulation only in force now. Thus, it seems reasonable to see an exemption to the application of Illinois law according to Article 21(2) of the Succession Regulation. In the case concerned the close connection to Germany required in this article could be seen in the citizenship of both testators and the fact that they only mentioned relatives in Germany in the testament. Anyhow, in the case concerned, the question of the applicable law could be left unanswered as both laws led to the same result. This decision makes a valid point regarding the missing legal certainty in cases in which the Succession Regulation is applied to testaments written long before it came into existence. The solution the court is seeking here using Article 21(2) of the Succession Regulation might not be able to counteract fully any such legal uncertainty in other cases. It might not always be clear whether the deceased was manifestly more closely connected with a certain state. Thereby, a lack of legal certainty might remain.

46 BGH, 10 December 2014, XII ZB 662/13, DET20141210; OLG Stuttgart, 17 January 2014, 17 WF 229/13, DES20140117; OLG Köln, 11 January 2012, 27 WF 194/11, DES20120111; OLG Frankfurt a. M, 12 April 2012, 5 UF 66/11, DES20120412. 47 OLG Koblenz, 18 March 2015, 13 UF 825/14, DES20150318. 48 OLG Hamm, 3 December 2012, II-7 WF 239/12, DES20121203; OLG Stuttgart, 31 July 2012, 17 WF 156/12, DES20120731; OLG München, 20 December 2013, 12 UF 1731/13, DES20131220; Thüringer Oberlandesgericht, 28 April 2015, 1 UF 668/14, DES20150428. 49 Amtsgericht Hamburg-Wandsbek, 17 May 2018, 709 VI 2263/17, DEF20180517.

496  Mirjam Escher

C.  The Succession Regulation and German Law Apart from the habitual residence, there has been just one other issue that has occupied the courts in relation to the Succession Regulation. In two cases50 courts were asked to include certain properties in the European Certificate of Succession. Both courts explained that under the German Successions Law the listing of specific assets is not possible. According to Article 68(l) of the Succession Regulation, the European Certificate of Succession shall contain the share for each heir and, if applicable, the list of rights and/or assets for any given heir. According to Article 63(2)(b) of the Succession Regulation the Certificate may be used to demonstrate the attribution of a specific asset forming part of the estate to the heir(s). But the German Successions Law – applicable through Article 21(1) of the Succession Regulation – is bound by the principle of universal succession embedded in § 1922 of the German Civil Code. Therefore, specific assets are not inherited but the estate or a certain quota of it is inherited. A merely informative listing of assets in the Certificate is neither permissible as it would undermine the purpose of the European Certificate to only show information that can be used in all Member States. Recital 18 of the Succession Regulation therefore stipulates that the European Certificate of Succession issued under the Regulation should constitute a valid document for the recording of succession property in a register of a Member State. The Oberlandesgericht München further underlined that problems with the transfer of property cannot be solved this way as the regulation of questions of the applicability of property law would go beyond the scope of the Succession Regulation according to its Article 1(1) and (2)(l).51

V.  Recognition and Enforcement The two most controversial issues discussed with regards to recognition and enforcement are provisional measures under the Brussels IIa Regulation and the partial abolition of exequatur under the Maintenance Regulation. Further, there have been some decisions on the different grounds of non-recognition or non-enforcement.

A.  Provisional Measures under the Brussels IIa Regulation A frequently raised issue has been whether the recognition and enforcement provisions of Article 21 et seq of the Brussels IIa Regulation cover provisional measures pursuant to Article 20(1) Brussels IIa Regulation. The Bundesgerichtshof explained that some legal scholars interpret the term ‘decision’ in Article 2(4) of the Brussels IIa Regulation as not including ‘provisional measures’ pursuant to Article 20(1) of the Brussels IIa Regulation. They argue that only decisions in the main proceedings can be recognised 50 OLG Nürnberg, 5 April 2017, 15 W 299/17, DES20170405; OLG München, 12 September 2017, 31 Wx 275/17, DES20170912. 51 OLG München, 12 September 2017, 31 Wx 275/17, DES20170912.

The Application of the EUFam’s Regulations in Germany  497 pursuant to the Regulation. Others argue in favour of a limited or even full recognition of provisional measures, basing their arguments on the special need of protecting the child and its right to be heard.52 On occasion of this dispute, the Court addressed a preliminary reference to the CJEU to decide the scope of the Brussels IIa Regulation with regards to the recognition of foreign provisional measures.53 In Purrucker I the CJEU thereupon took a look at the structure of Article 20 as last article of Chapter II on jurisdiction. Thereby, it highlighted that this provision could not be regarded as determining substantive jurisdiction. Further, the wording supports this finding as the provisions merely ‘shall not prevent’ the courts from taking a provisional measure (cf wording of Recital 16).54 The Court went on to stress the importance of full effectiveness of the Regulation which is only possible through mutual recognition based on mutual trust.55 Further, it underlined that in view of the importance of provisional measures in particular for young children it was vital to offer a possibility for appeal to the person affected.56 In the light of all these arguments the Court answered the question in the following: ‘[T]he provisions laid down in Articles 21 et seq of Regulation No 2201/2003 do not apply to provisional measures, relating to rights of custody, which fall within the scope of Article 20 of that regulation’. Thus, according to the CJEU, the recognition and enforcement of the provisional measure is subject to Articles 21 et seq of the Regulation if the court of origin of a provisional measure has jurisdiction over the main proceedings pursuant to the Articles 8 et seq of the Brussels IIa Regulation. In contrast, if the court of origin does not have jurisdiction pursuant to the Articles 8 et seq of the Brussels IIa Regulation, Articles 21 et seq of the Regulation are inapplicable.57 In that case, the provisional measure can only be recognised and enforced based on separate international agreements or the respective national law. However, this recognition outside the Brussels IIa Regulation is only possible if the requirements of Article 20 of the Regulation are met (‘opening clause’).58 In light of the principle of mutual trust, the courts in the state of recognition or enforcement are not permitted to decide ex post on the jurisdiction of the court of origin (cf Art 24 of the Regulation). Instead, the courts of recognition or enforcement can only check whether the court of origin has based its jurisdiction on the Brussels IIa Regulation.59 Applied to the case in question, the court of origin did not clearly base its jurisdiction on Articles 8 et seq of the Regulation and the requirements of the opening clause of Article 20 were not met. Thereby, the Spanish provisional measure could neither be recognised nor enforced in Germany.60 Several courts have adopted this approach ever since. The Oberlandesgericht Stuttgart for example decided that Articles 21 et seq were applicable in a case, in which a Hungarian

52 BGH, 10 June 2009, XII ZB 182/08, DET20090610. 53 Case C-256/09 Bianca Purrucker v Guillermo Vallés Pérez [2010] ECR I-7353, ECLI:EU:C:2010:437 (‘Purrucker I’) para 57. 54 ibid paras 61 ff. 55 ibid paras 70 ff. 56 ibid paras 97 ff. 57 cf BGH, 9 February 2011, XII ZB 182/08, DET20110209. 58 cf BGH, 9 February 2011, XII ZB 182/08, DET20110209. 59 BGH, 9 February 2011, XII ZB 182/08, DET20110209. 60 BGH, 9 February 2011, XII ZB 182/08, DET20110209.

498  Mirjam Escher court held they had international jurisdiction pursuant to Article 8 as the child had habitually resided in Hungary.61 The Bundesgerichtshof confirmed these findings.62 In another case the Bundesgerichtshof explained that jurisdiction must not be based on the Brussels IIa Regulation expressly. In the case concerned, the Hungarian court of origin had only impliedly based its jurisdiction on the Regulation. It had pointed to the fact that the father wrongfully removed the child from the mother’s care and therefore the child’s residence did not change through this action. This argument is in line with Article 10 Brussels IIa Regulation. Therefore, the recognition and enforcement of the decision was governed by Articles 21 et seq Brussels IIa Regulation.63 The Oberlandesgericht München deemed the decision of a Polish court as not enforceable under the Regulation as the Polish court had not based its competence on the provisions of the Brussels IIa Regulation. But the opening clause of Article 20 led the court to apply the 1980 Hague Child Abduction Convention and it declared the decision enforceable pursuant to Article 26 Sec 2 of the Convention.64 The discussion surrounding provisional measures under the Brussels IIa Regulation has subsequently calmed down, but clear guidelines are still missing, and the matter is still far from finally settled.

B.  Exequatur under the Maintenance Regulation The Maintenance Regulation distinguishes between decisions given in Member States bound by the 2007 Hague Maintenance Protocol (Articles 17 et seq) and decisions given in Member States not bound by the Protocol (Articles 23 et seq). For the former the need for an exequatur of decisions and agreements was abolished. For decisions and agreements rendered in the latter, an exequatur is still needed. Articles 23 et seq are thereby applicable to the United Kingdom.65 Additionally, pursuant to Art 75(2) of the Maintenance Regulation an exequatur procedure is necessary in cases of Member States of the 2007 Hague Maintenance Protocol if the proceedings began before the Maintenance Regulation was applicable, but the decision was given after that date. According to Article 76, the Regulation only applies to proceedings instituted after 18 June 2011.66

C.  Grounds of Non-Recognition or Non-Enforcement i.  Hearing of the Child Article 23(b) of the Brussels IIa Regulation establishes the lack of the hearing of a child as grounds for non-recognition and non-enforcement. The Bundesgerichtshof stressed 61 OLG Stuttgart, 5 March 2014, 17 UF 262/13, DES20140305. 62 BGH, 8 April 2015, XII ZB 148/14, DET20150408. 63 BGH, 28 April 2011, XII ZB 170/11, DET20110428. 64 OLG München, 22 January 2015, 12 UF 1821/14, DES20150122. 65 For cases relating to the United Kingdom cf OLG Frankfurt, 30 December 2015, 4 UF 268/15, DES20151230, OLG Stuttgart, 25 October 2013, 17 UF 189/13, DES20131025. 66 cf OLG Düsseldorf, 28 April 2015, 1 UF 261/14, DES20150428 and BGH, 23 September 2015, XII ZB 234/15, DET20150923; OLG Nürnberg, 7 UF 694/14, DES20140710; OLG Karlsruhe, 6 December 2011, 8 W 34/11, DES20111206.

The Application of the EUFam’s Regulations in Germany  499 that a child must be heard if such a hearing is appropriate in regards to the age and maturity of the child and if the matter is not urgent.67 But referring to a question raised in the specific case it reiterated that it is neither regulated in the Brussels IIa Regulation nor necessary to appoint an attorney for the child in enforceability proceedings.68 While it is not necessary to appoint an attorney, the child needs the explicit opportunity to be heard. The Oberlandesgericht Schleswig explained that the wording ‘opportunity to be heard’ as a requirement for the recognition of the judgment does not mean that the hearing is optional for the court. This wording only clarifies that the child cannot be forced to make a statement. But it is not enough to only summon the child to appear before a court without the explicit opportunity to be heard.69 With regard to the question of age and maturity raised by the Oberlandesgericht Hamm a child of three years was found to be mature enough to be heard.70

ii.  Public Policy Whereas the question was raised multiple times with regards to Article 23(a) of the Brussels IIa Regulation and Article 24(a) of the Maintenance Regulation, the courts rarely find an infringement of public policy. For example, the Oberlandesgericht Karlsruhe decided a case, in which the defendant claimed not to have been granted an interpreter during the proceedings before a Dutch court. The Court did not see an infringement of the German ordre public – in particular because the defendant deliberately omitted to defend himself during the Dutch proceedings.71 The Oberlandesgericht Hamm stated that it is not an infringement if paternity is solely based on the ground of a mother’s testimony if the father had the chance to request a DNA test.72 Lastly, the Oberlandesgericht Frankfurt elaborated that it does not constitute an infringement of public policy to determine the maintenance sum taking into account fictitious income,73 neither does a maintenance sum that is set too high.74

iii.  Service of Documents The Brussels IIa Regulation provides rules on the service of documents in cases of default of appearance in Article 23(c). In a case before the Amtsgericht Berlin-Pankow/ Weißensee documents had been sent only to the former French address of the defendant – and not her current German address – as a result of deliberate misinformation by the applicant. The court identified this as improper service of documents depriving the defendant of an opportunity to be heard by the court.75 67 BGH, 08 April 2015, XII ZB 148/14, DET20150408. 68 BGH, 08 April 2015, XII ZB 148/14, DET20150408. 69 OLG Schleswig, 19 May 2008, 12 UF 203/07, DES20080519. 70 OLG Hamm, 26 August 2014, 11 UF 85/14, DES20140826. 71 OLG Karlsruhe, 27 January 2014, 8 W 61/13, DES20140127. 72 OLG Hamm, 28 June 2012, II-11 UF 279/11, DES20120628; cf OLG Stuttgart, 13 February 2012, 17 UF 331/11, DES20120213. 73 OLG Stuttgart, 1 December 2014, 17 UF 150/14, DES20141201. 74 OLG Frankfurt, 30 December 2015, 4 UF 268/15, DES20151230. 75 Amtsgericht Berlin-Pankow/Weißensee, 20 March 2009, 28 F 935/09, DEF20090320.

500  Mirjam Escher An equivalent provision is to be found in Article 24(b) of the Maintenance Regulation. A case of the Oberlandesgericht Nürnberg underlined the possibility of misuse of this ground of refusal. The defendant had claimed that he had not known of his maintenance obligation until he received a letter by the German Federal Office of Justice. However, this claim was proved wrong, as the defendant had in fact received a copy of the document instituting the Polish proceedings more than a year earlier.76

iv. Irreconcilability The irreconcilability of a decision with another decision given in the Member State in which recognition is sought constitutes a ground for refusal under Article 24(c) of the Maintenance Regulation. The Oberlandesgericht Düsseldorf did not see these requirements fulfilled as the possibly irreconcilable decision – an appeal – in the respective case was sought in the Netherlands (Rechtbank Gelderland) and not in Germany, where recognition was sought.77 The Bundesgerichthof corrected this decision. It explained that a decision can only be enforced pursuant to Articles 23 et seq of the Maintenance Regulation if the decision would also be recognised in the rendering state itself. This is a general principle which is not explicitly mentioned in the Regulation. A decision that was successfully appealed would not have been recognised in that state. Therefore, the enforcement court must take the appeal into account.78

VI. Summary Settled case law is building up with regards to the Brussels IIa Regulation, the Maintenance Regulation and the 2007 Hague Maintenance Protocol – particularly concerning the term of ‘habitual residence’. Further, certain issues have been raised increasingly in recent years – such as private divorces and the interpretation of maturity under the Brussels IIa Regulation. However, other than expected, issues such as prorogation of jurisdiction, lis pendens and choice of law were not discussed intensively. An issue worth observing is the matter of provisional measures and their recognition and enforcement under the Brussels IIa Regulation as well as the newly developing case law regarding the Succession Regulation.



76 OLG 77 OLG

Nürnberg, 10 July 2014, 7 UF 694/14, DES20140710. Düsseldorf, 28 April 2015, 1 UF 261/14, DES20150428. 23 September 2015, XII ZB 234/15, DET20150923.

78 BGH,

33 The Application of the EUFam’s Regulations in Italy DILETTA DANIELI AND CINZIA PERARO*

I. Introduction A.  Scope and Purpose of the Report This chapter provides a report on Italy, drafted following the completion of the EUFam’s project (1 January 2016–31 December 2017) in order to provide an overall assessment of the trends emerging from the national case law collected and classified in the database that was created as one of the project’s outputs.1 The research of case law and the population of the database have been carried out throughout the whole project’s duration by two Italian partners, namely the University of Verona and the Italian Family Lawyers Association (AIAF). The relevant decisions have been collected not only through the most common legal databases available in Italy (both with open and restricted access), but also thanks to the direct cooperation of judges (especially of first and second instance courts). These judges actively shared many judgments that otherwise would not have been disclosed. All decisions have been assessed in an anonymised version, although in some cases even data that would have proven useful for the research had been erased. On a preliminary note, it should be specified that this chapter builds on the previous project’s deliverables, which were also aimed at offering an empirical evaluation of the main issues concerning the practical application of the EU Regulations on family law and their interplay with the relevant international conventions. On the one hand, the present report constitutes a country-specific follow-up of the First Assessment Report on the case law collected by the Research Consortium,2 which took into account the data

* Sections I–II, and IV–VI are to be attributed to D Danieli; section III is to be attributed to C Peraro. 1 The public version of the database is available at: www.eufams.unimi.it/category/database. The alphanumeric code following the decisions cited in the footnotes of this chapter represents the uniform classification tool adopted in order to populate the database. The references not displaying such code are decisions that have not been classified in the EUFam’s database because they do not involve cross-border situations. 2 I Viarengo and FC Villata (eds), First Assessment Report on the Case-Law Collected by the Research Consortium (EUFam’s Project, 2016) at www.eufams.unimi.it/wp-content/uploads/2017/01/EUFAMSFirst-Assessment-Report-of-the-collected-case-law.pdf. This report considered the case law collected by all

502  Diletta Danieli and Cinzia Peraro entered into the EUFam’s database as of 10 June 2016, with a view to providing a provisional overview of Member States’ practice for the subsequent project-related activities. In this regard, only those issues specifically pertaining to Italian practice that appear worthy of further consideration are again discussed in this report in light of the additional case law collected after the publication of the First Assessment Report. On the other hand, reference is made also to the Report on the Italian Good Practices presenting the outcomes of the Italian Exchange Seminar,3 which was held in Verona on 14 July 2016, and was attended by judges, academics and practitioners. As to quantitative data, this report’s scope covers Italian case law gathered on the EUFam’s database as of 26 May 2018. More precisely, the total number of decisions amounts to 247. Of these, 205 were issued by courts of first instance (comprising also Juvenile Courts and judges supervising guardianships), 12 by courts of second instance (Courts of Appeal), and 30 by the Supreme Court. With regard to the distribution of the collected judgments over time, almost half of them were within the last two years (2016 and 2017), thus providing a very up-to-date source of case law for the purposes of the assessment. Lastly, as far as the subject matters dealt with are concerned, the vast majority of cases are typically legal separation or divorce proceedings in which the spouses have also claimed the regulation of child custody and/or rights of access, and maintenance obligations. As a result, the legal instruments that have been most referred to are the Brussels IIa Regulation, together with the Maintenance Regulation, the Rome III Regulation, and the Italian PIL Act (Law 218/1995).4 In light of this overview of the available data, it seems safe to say that the Italian case law collected in the EUFam’s database is able to provide a reliable picture of the general approaches taken by national courts. Before delving into the substantial contents of the assessment, it is worth mentioning that this Report generally implements the same structure as the First Assessment Report for reasons of consistency and cross-readability. Therefore, the main issues related to the scope of application of the EU family law instruments are dealt with first, and then each PIL aspect (ie, jurisdiction, applicable law, and recognition and enforcement of judgments) is separately addressed according to the relevant regulatory framework. In addition, whenever appropriate, the interrelation with the applicable international conventions is taken into account.

B.  Brief Overview of the Italian Procedural Regime in Family Disputes Some preliminary considerations should be made also to illustrate briefly the general procedural features of family disputes in the Italian legal order. These considerations can be useful in order to better understand the trends emerging from the national case law addressed in the following sections. partners of the project, concerning the following EU countries: Bulgaria, Croatia, Czech Republic, France, Germany, Greece, Italy, Slovakia and Spain. 3 MC Baruffi, C Fratea and C Peraro, Report on the Italian Good Practices (EUFam’s Project, 2016) at www.eufams.unimi.it/wp-content/uploads/2017/01/EUFams_Italian-Exchange-Seminar_Report_Italian_ Good_practices_eng_final3.pdf. 4 Law No 218 of 31 May 1995 ‘Riforma del sistema italiano di diritto internazionale privato’.

The Application of the EUFam’s Regulations in Italy  503 Under the domestic procedural law, separation proceedings before a court can be either by mutual consent (separazione consensuale, Article 711 of the Italian Civil Procedural Code) or judicial (separazione giudiziale, Articles 706–10 of the Italian Civil Procedural Code).5 In the latter case, the proceedings (initiated with a petition lodged jointly by the spouses or by one of them) consist of two stages. The first stage takes place before the President of the competent court of first instance, while the second one is handled by an investigating judge (giudice istruttore) and the final decision is taken by the court (made up of three judges). At the first hearing,6 the President of the court attempts a conciliation procedure between the spouses. In case of failure in reaching a settlement, he shall issue an order whereby the proceedings are adjourned to the further investigation phase, and provisional and urgent measures in the interests of the spouses (and the children) are taken. Then, the proceedings shall follow the ordinary procedural regime (with the additional mandatory intervention of the public prosecutor) and the parties are allowed to lodge supplementary pleadings. The final decision is provisionally enforceable and the conditions laid down in the separation judgment can be subject to subsequent modifications upon request of one of the spouses. After a fixed period of legal separation (12 months from the time the couple appeared before the President of the court in case of judicial proceedings, or six months in case of separation by mutual consent),7 it is possible to file for divorce before the competent court of first instance, and the proceedings are governed by the Italian law on divorce (Law 898/1970).8 Also the divorce proceedings can be either by mutual consent (procedimento su domanda congiunta) or judicial (procedimento contenzioso). In the latter case, the same procedural regime of separation proceedings applies. In addition, the conditions laid down in the divorce judgment can be subsequently reviewed upon request of one of the parties. In the Italian legal system, specialised courts for civil, administrative,and criminal matters concerning minors (juvenile courts)9 also exist. Juvenile courts’ competence includes the adoption of orders that modify or limit parental responsibility rights pursuant to the relevant rules of the Italian Civil Code. These civil proceedings before the juvenile courts are regulated according to the provisions on non-contentious jurisdiction (giurisdizione volontaria) set forth in the Italian Civil Procedural Code. Apart from

5 As the scope of this report covers the judicial decisions collected in the EUFam’s database, the possibility to obtain a separation or divorce (or to modify their conditions) by means of an out-of-court settlement reached with the assistance of one or more lawyers, or registered before the mayor in his capacity as civil status registrar, will not be taken into account. These two types of ‘administrative’ separation or divorce were introduced in the Italian legal order by Decree Law No 132 of 12 September 2014 ‘Misure urgenti di degiurisdizionalizzazione ed altri interventi per la definizione dell’arretrato in materia di processo civile’. 6 The first hearing should be held within a 90-day timeframe from the date the document instituting the proceedings has been lodged with the court, but it is a non-mandatory time limit. 7 These short time limits between the legal separation and the subsequent action for divorce were introduced by Law No 55 of 6 May 2015 ‘Disposizioni in materia di scioglimento o di cessazione degli effetti civili del matrimonio nonchè di comunione tra i coniugi’. 8 Law No 898 of 1 December 1970 ‘Disciplina dei casi di scioglimento del matrimonio’. 9 More precisely, 29 juvenile courts are currently in place in Italy (located in the following districts: Ancona, Bari, Bologna, Bolzano, Brescia, Cagliari, Caltanissetta, Campobasso, Catania, Catanzaro, Firenze, Genova, L’Aquila, Lecce, Messina, Milano, Napoli, Palermo, Perugia, Potenza, Reggio Calabria, Roma, Salerno, Sassari, Taranto, Torino, Trento, Trieste and Venezia). During the 2013–2018 legislature, a legislative bill was, however, proposed with a view to rearranging the existing juvenile justice system, by replacing the juvenile courts with specialised divisions within the ordinary civil and criminal courts.

504  Diletta Danieli and Cinzia Peraro these specific cases, competence to rule on parental responsibility issues shall lie with courts of first instance, which are further entitled to take measures modifying or limiting parental responsibility rights whenever they are concurrently seised with judicial separation/divorce proceedings (see Article 38 of the implementing provisions of the Italian Civil Code). It follows that in the context of separation/divorce proceedings, ancillary parental responsibility and maintenance claims are brought before the same court of first instance. Thus, this court is called upon to rule on different subject matters stemming from the breakdown of family relationships. This has indeed been the factual background generally dealt with in the Italian case law collected in the EUFam’s database.

II.  Matters Related to the Scope of Application A.  General Issues The first general consideration that can be inferred from the analysis of the Italian case law regards a still insufficient assessment of the PIL issues related to each claim that is brought before the court. Even though the majority of the collected decisions do follow a proper approach in this regard, it is nevertheless common practice to determine jurisdiction with regard to the main claims (mostly matrimonial and/or parental responsibility matters). Then, the courts rule on the merits of the remainder of the application without further reference to the relevant EU Regulations or international conventions to determine the applicable law, but generally recalling the Italian substantive law.10 This may point to persisting difficulties not only in the understanding of the actual scope of these legal instruments (and of the underlying claims), which is the necessary condition for their correct application, but more broadly in implementing a proper methodology to deal with cross-border cases. A further aspect to consider from a general perspective is the peculiar relationship that exists between the Brussels IIa Regulation and the Member States’ PIL statutes. The EU instrument always supersedes national rules whenever an international element (even linked to a non-EU state) exists in the actual case, and the CJEU has indeed recalled that the Regulation does not make ‘reference to any limitation of [its] territorial scope’.11 This also results from the absence of any personal prerequisites of application underlying the Brussels IIa regime and is laid down in the residual grounds of jurisdiction provided in Articles 7 and 14 thereof with regard to matrimonial matters and parental responsibility, respectively. As far as the analysed Italian case law is concerned, occasional inconsistencies have emerged in this respect. The application of the Brussels IIa Regulation in cases of legal separation or divorce disputes between third-country

10 eg, Trib minorenni Milano, 5 February 2010, ITF20100205; Trib Torino, 13 May 2016, ITF20160513; Trib Roma, 21 February 2017, ITF20170221; Trib Padova, 8 September 2017, ITF20170908; Trib Cosenza, 18 September 2017, ITF20170918. 11 Case C-393/18 PPU UD v XB [2018] ECLI:EU:C:2018:835 para 31.

The Application of the EUFam’s Regulations in Italy  505 nationals is indeed well established (as confirmed by the CJEU)12 and results in a proper reference to the grounds of jurisdiction set forth in its Article 3.13 On the contrary, the location of the habitual residence of a child in a non-Member State at times excludes any reference to the Brussels IIa Regulation.14 However, this appears incorrect from a methodological perspective, because it is the residual ground of jurisdiction provided in Article 14 thereof15 that allows the court to refer to its domestic rules, provided that there is no other court within the EU having jurisdiction pursuant to Articles 8–13 of the Regulation. In this regard, the CJEU has reiterated a distinction that needs to be made within the jurisdictional regime in parental responsibility matters. There are in fact certain provisions such as Articles 9, 10 and 15 of the Regulation implying that ‘their application is dependent on a potential conflict of jurisdiction between courts in a number of Member States’, while the wording of Article 8 Paragraph 1 precludes it from being limited ‘to disputes relating to such conflicts’.16

B.  Matrimonial Matters A recurring issue in the Italian case law classified in the EUFam’s database is the assessment of a fault-based separation petition pursuant to Article 151 Paragraph 2 of the Italian Civil Code (domanda di separazione con addebito). A fault-based separation petition is the request made by one or both spouses to the court in order to determine which of them (if any) can be held accountable for the breakdown of the marriage (and also be ordered to provide for spousal maintenance). In this regard, Recital 8 of the Brussels IIa Regulation clarifies that it should not deal with issues such as ‘grounds for divorce’ (and, by extension, those for legal separation), but applies only to the dissolution of matrimonial ties. In the Italian legal order, however, despite the fault-based claim being independent from the separation petition (and only upon the party’s request), it cannot be brought before a court in proceedings other than for separation.17 As a result, national courts have usually applied the same PIL regime to the separation petition and the fault-based claim, whenever submitted, even though a specific assessment regarding the latter was carried out only in a handful of decisions that mainly followed a similar approach.18 More precisely, the legal sources that have been referred to are the 12 Case C-68/07 Kerstin Sundelind Lopez v Miguel Enrique Lopez Lizazo [2007] ECR I-10403, ECLI:EU:C:2007:740. 13 Among the many examples: Trib Roma, 27 August 2014, ITF20140827b (Tunisian spouses); Trib Roma, 27 January 2015, ITF20150127 (Peruvian spouses); Trib Roma, 1 June 2016, ITF20160601a (Filipino spouses); Trib Belluno, 9 November 2017, ITF20171109 (Albanian spouses). 14 eg, Trib Roma, 17 February 2016, ITF20160217b, regarding a child habitually resident in Australia; Cass, 28 May 2014 No 11915, ITT20140528, regarding a child habitually resident in Cuba; Cass, 5 June 2017 No 13912, ITT20170605, regarding a child habitually resident in the State of Washington, United States. 15 In a few cases, however, Art 14 of the Brussels IIa Regulation has been correctly referred to and applied: see Trib Milano, 1 June 2012, ITF20120601; Trib Padova, 1 August 2016, ITF20160801. 16 Case C-393/18 PPU UD v XB (n 11) para 33. 17 This is indeed the settled approach taken by Italian courts when ruling on fault-based separation petitions according to Art 151(2) of the Italian Civil Code. For instance, see Cass, 7 December 2007 No 25618; Cass, 20 March 2008 No 7450; Cass, 30 March 2012 No 5173. 18 Trib Roma, 4 November 2016, ITF20161104; Trib Parma, 31 May 2017, ITF20170531; Trib Belluno, 9 November 2017, ITF20171109.

506  Diletta Danieli and Cinzia Peraro Brussels IIa Regulation (Article 3) and the Rome III Regulation (Article 5 or 8) in order to establish jurisdiction and the applicable law, respectively. A different reasoning, in which jurisdiction was grounded on Article 5 Paragraph 3 of the Brussels I Regulation given that Italy was the place where the harmful event (ie, the fault) had occurred, was proposed only in one judgment among those collected, and therefore does not seem settled.19

C.  Parental Responsibility Generally speaking, the wide-ranging scope of parental responsibility matters under the Brussels IIa Regulation is properly interpreted in the Italian case law collected in the EUFam’s database, also in light of the relevant CJEU decisions. No particular doubt has arisen with regard to all legal situations that are inherently related to parental responsibility rights – namely from their very existence (‘attribution’), throughout their forms of exercise (‘exercise, delegation, restriction’), to their cessation (‘termination’)20 – as well as to measures that possess the purposive nature of protecting the child and his/her best interests, such as those in relation to child’s property. In this latter respect, for instance, an Italian judge supervising guardianships (giudice tutelare) has ordered the appointment of a special guardian (unrelated to the family) authorised to represent the children (habitually residing in Spain) in the purchase of an immovable property located in Italy by reasonably considering this measure according to Article 1(2)(c) of the Brussels IIa Regulation.21 Differently, some difficulties have been encountered when addressing claims that are ancillary to parental responsibility rights, in particular penalty payments pursuant to Article 709-ter(2) of the Italian Civil Procedural Code. More precisely, this provision allows the judge to take enforcement measures in cases of breach of the rights of custody or any other action that may cause harm to the child or undermine the exercise of such rights, which can consist either in a warning, or a compensation for damages or even a fine. The actual scope of the provision is, however, debated, given that its wording only refers to failures to comply with the custody regime. However, in the case law it has been extensively applied also to cases of failures to comply with maintenance obligations.22 Among the decisions classified in the EUFam’s database, requests for compensation for damages claimed on the basis of Article 709-ter(2) of the Italian Civil Procedural Code have been ruled upon without carrying out any preliminary PIL assessment,23 but for

19 Trib Tivoli, 6 April 2011, ITF20110406. 20 The actual extent of these legal situations, however, is specified by the applicable substantive law (either domestic law or foreign law, as determined by the connecting factor laid down in the relevant international instrument). Regarding the law applicable to parental responsibility matters, see Ch 19 of this volume (Applicable Law. The 1996 Hague Convention on the Protection of Children). 21 Trib Padova, 14 September 2017, ITF20170914. On this case see also section III.B in this chapter. 22 eg, Trib Bologna, 19 June 2007; Trib Roma, 5 June 2007; Trib Modena, 20 January 2012. 23 Trib Roma, 20 May 2014, ITF20140520b; Trib Vercelli, 23 July 2014, ITF20140723; Trib Roma, 27 August 2014, ITF20140827b; Trib Benevento, 12 March 2015, ITF20150324; Trib Roma, 24 March 2017, ITF20170324.

The Application of the EUFam’s Regulations in Italy  507 a case adjudicated by the Italian Supreme Court.24 In order to rule on the jurisdiction of the lower court, this judgment precisely addressed the ancillary relationship existing between claims concerning the exercise of parental responsibility over children habitually residing in London and a further action based on Article 709-ter(2), whose subject matter in this case was the alleged breach of maintenance obligations towards them and the consequent request for compensation for damages. The Supreme Court held that the cause of action of the latter claim was inherently based in tort (ie, the breach of maintenance obligations), and thus was not ancillary to the action on parental responsibility. As a result, jurisdiction to rule on tort claims had to be established under the Brussels I Regulation (applicable ratione temporis), and not the Brussels IIa Regulation. This conclusion may appear inconsistent with the CJEU ruling in the Bohez case,25 where the enforcement of a penalty payment imposed in order to ensure the effectiveness of rights of access was considered an ancillary measure that serves to protect a right falling within the scope of the Brussels IIa Regulation. It seems difficult, however, to draw general considerations from a single decision. Another issue that is worth mentioning with regard to the scope of application of the EU instruments in relation to parental responsibility rights is the assessment of the claim concerning the award of the family home. Also under this respect, the case law in the EUFam’s database provides only a ‘partial’ guidance as far as the preliminary PIL aspects are concerned. Indeed, only in one case an Italian court of first instance has expressly grounded its jurisdiction on such a claim pursuant to Article 8 of the Brussels IIa Regulation and determined the applicable law on the basis of Article 2 of the 1961 Hague Convention on the Protection of Infants as recalled by Article 42 of the Italian PIL Act, clarifying that it should be considered as a measure of protection towards children.26 More precisely, the family home was awarded to the custodial parent (the mother) in order to allow her to keep living with the children. However, this holding seems common to many other collected judgments in which courts have been called upon to rule on the claim regarding the family home, despite the lack of any reference to the relevant EU and international legal sources before taking the decision on the merits.27

D.  Temporal Scope of Application A brief mention of the application ratione temporis should be made in relation to two EU family law instruments among those considered for the purposes of the EUFam’s project. In particular, albeit rarely, the Maintenance Regulation and the Rome III Regulation were not referred to by the Italian courts in the collected judgments even though they were both already applicable at the date of the commencement of the proceedings at 24 Cass, 15 November 2017 No 27091, ITT20171115. 25 Case C-4/14 Christophe Bohez v Ingrid Wiertz [2015] ECLI:EU:C:2015:563. 26 Trib Cremona, 15 September 2014, ITF20140915. 27 eg, Trib Milano, 8 April 2011, ITF20110408; Trib Roma, 27 August 2014, ITF20140827b; Trib Roma, 8 March 2016 No 4804, ITF20160308; Trib Roma, 12 April 2016, ITF20160412; Trib Torino, 13 May 2016, ITF20160513.

508  Diletta Danieli and Cinzia Peraro hand.28 This has usually resulted in the incorrect application of the Italian PIL Act in lieu of the EU instruments. Nevertheless, in most cases the decision on the substance of the case remained unaffected by the reference to the wrong legal basis.29

III.  Matters Related to Jurisdiction A.  General Grounds of Jurisdiction The application of the general grounds of jurisdiction laid down in the EU family law instruments does not raise much concern in the Italian case law classified in the EUFam’s database. National courts are indeed fairly familiar with the interpretation of the key connecting factor of habitual residence in accordance with the guidance provided by the CJEU,30 which stresses the importance of a comprehensive factual evaluation of one’s personal and professional ties. A further comment regards the different approach occasionally taken in relation to matrimonial and parental responsibility claims. In the former cases, Italian courts sometimes tend to consider exclusively the documents exhibited by the parties, such as certificates of residence or income tax returns, in order to locate the habitual residence without carrying out a proper factual assessment as required by the CJEU.31 On the contrary, in the latter cases the evaluation concerning the habitual residence of children is usually more accurate and takes into account the actual circumstances of the case.32 For example, in a case involving a very young child (two years old at the time the proceedings were commenced) who had no personal ties other than the maternal and paternal families, the Italian Supreme Court has held

28 With regard to the Maintenance Regulation, see Trib Vercelli, 26 May 2016, ITF20160526 (the temporal issue actually regarded the 2007 Maintenance Protocol as recalled by Art 15 of the Maintenance Regulation); Trib Modena, 7 February 2017, ITF20170207; Trib Parma, 31 May 2017, ITF20170531. With regard to the Rome III Regulation, see Trib Roma, 25 July 2014, ITF20140725; Trib Pavia, 20 August 2015, ITF20150820a; Trib Pavia, 20 August 2015, ITF20150820b; Trib Pavia, 8 January 2016, ITF20160108; Trib Cuneo, 22 September 2016, ITF20160922; Trib Roma, 4 November 2016, ITF20161104 (this case was particularly odd given that Art 31(1) of the Italian PIL Act was referred to when determining the law applicable to the legal separation claim, while Art 8(d) of the Rome III Regulation was applied to determine the law applicable to the fault-based aspect of the same petition); Trib Roma, 19 May 2017, ITF20170519c. 29 Only in one instance it seems that the merits of the case could have changed: see Trib Milano, 16 November 2012, ITF20121116, where the court directly ruled on the substance of the spousal maintenance claim applying the Italian law, even though by virtue of Art 15 of the Maintenance Regulation and Art 3 of the 2007 Hague Protocol the applicable law should have been the English law (the habitual residence of the maintenance creditor was located in London). 30 The notion of habitual residence has indeed been clarified by the CJEU in a number of decisions, which, however, concern only children: Case C-523/07 A [2009] ECR I-2805, ECLI:EU:C:2009:225; Case C-497/10 PPU Barbara Mercredi v Richard Chaffe [2010] ECR I-14309, ECLI:EU:C:2014:2268; Case C-111/17 OL v PQ [2017] ECLI:EU:C:2017:436; Case C-512/17 HR [2018] ECLI:EU:C:2018:513; Case C-393/18 PPU UD v XB (n 11). With regard to the interpretation of the notion in another area of law (namely, expatriation allowances), see Case C-452/93 P Pedro Magdalena Fernández v Commission of the European Communities [1994] ECR I-4295, ECLI:EU:C:1994:332. 31 In this regard, see Trib Belluno, 30 December 2011, ITF20101230; Trib Roma, 20 February 2013; Trib Parma, 2 January 2017, ITF20170102; Trib Alessandria, 11 December 2017, ITF20171211. 32 eg Trib minorenni Milano, 5 February 2010, ITF20100205; Trib minorenni Milano, 30 April 2010, ITF20100430.

The Application of the EUFam’s Regulations in Italy  509 that her habitual residence should be determined according to a ‘projective view’. In other words, the determination should be made on the basis of factual elements, such as the enrolment in kindergarten for the coming year and the registration in the national healthcare system that proved the intention of the mother to keep the child’s residence in the United Kingdom.33 With regard to the parents’ intention to settle with the child in a certain Member State, however, the CJEU has specified that it is to be taken into account as an ‘indicator’ capable of complementing other pieces of evidence, but cannot by itself be ‘crucial to the determination of the habitual residence of a child’.34

B.  Prorogation of Jurisdiction Article 12 of the Brussels IIa Regulation is rarely referred to and applied in the Italian decisions collected for the purposes of the population of the EUFam’s database. This was indeed established as a consequence of the lack of its (narrow) requirements, mostly that regarding the spouses’ acceptance of the jurisdiction of the courts seised with the matrimonial proceedings. In fact, according to the Italian practice, such a requirement implies at least the appearance of the parties before the court, as was already pointed out during the discussion within the Italian Exchange Seminar, and then in the Report on the Italian Good Practices.35 Further proper guidance comes from a judgment delivered by the Italian Supreme Court,36 where it has been clarified that the acceptance of the jurisdiction of the lower court as to parental responsibility could not be inferred from the failure of the party to contest jurisdiction on the personal separation petition, since the two applications had different subject matters. In other words, the party’s acceptance of the jurisdiction of the Italian court on matrimonial matters could not be extended to the application regarding the child’s custody and maintenance. In the case at issue, the impossibility of applying the prorogation of jurisdiction thus resulted in the ‘disconnection’ of the jurisdiction on the separation petition and the custody and maintenance claims, which lay with the Italian and the UK courts, respectively. Occasionally, questionable references to Article 12 of the Brussels IIa Regulation are also found in the Italian case law. On the one hand, this provision is sometimes recalled even though the jurisdiction on parental responsibility matters was already grounded pursuant to the general rule of Article 8, thus raising some doubts on the proper understanding of its functioning.37 On the other hand, in one instance38 the application of Article 12 in order to first assess and then decline jurisdiction on parental responsibility claims does not appear convincing to the extent that the child was habitually resident in Italy at the time the Italian first instance court was seised and then moved to Germany when proceedings were pending. This supervening relocation should have been more

33 Cass, 30 March 2018 No 8042, ITT20180330. 34 Case C-111/17 OL v PQ (n 30) paras 46–50. Along the same line, also Case C-512/17 HR (n 30) paras 61–65. 35 Report on the Italian Good Practices (n 3) s 4. 36 Cass, 30 December 2011 No 30646, ITT20111230. 37 Trib Belluno, 27 October 2016 No 5217, ITF20161027; Trib Belluno, 9 November 2017, ITF20171109. 38 Trib Benevento, 12 March 2015, ITF20150312.

510  Diletta Danieli and Cinzia Peraro appropriately considered under Article 15 of the same Regulation for the purposes of transferring the case to the court better placed to hear it (ie, the German court), being one of the factual circumstances that proves a ‘particular connection’ to the other Member State within the meaning of Article 15(3). Lastly, a brief comment should be given with regard to an illustrative decision rendered by a judge supervising guardianships, who retained jurisdiction according to Article 12(3) of the Brussels IIa Regulation in order to appoint a guardian representing two children habitually resident in Spain in the purchase of an immovable property located in Italy.39 Indeed, it was properly held that the conditions required by that provision were met in the instant case. The children had a substantial connection with Italy (ie, Italian nationality), the jurisdiction of the Italian court was expressly accepted by all the parties to the proceedings (the parents had lodged a joint application), and the best interests of the children were fulfilled.

C.  Child Abduction A trend already pointed out in the First Assessment Report40 with regard to the Italian case law and that should be again underlined is the frequent exclusive reference to the 1980 Hague Child Abduction Convention, without mention to the Brussels IIa Regulation, in decisions concerning intra-EU child abduction cases.41 This incorrect approach in the resolution of these often complex disputes should be reconsidered because it may overlook certain procedural requirements set forth by the Regulation, which are precisely aimed at reinforcing the swiftness and effectiveness of the proceedings (eg, Article 11(3) on the six-week time limit, or Article 11(4) regarding the obligation to order the return whenever adequate arrangements are put in place in the state of origin). Notwithstanding this general remark, examples of good practice are also found in the Italian case law collected in the EUFam’s database, which are worth mentioning here for the accurate and thorough assessment carried out in the context of the problematic ‘overriding’ mechanism pursuant to Article 11(6)–(8) of the Brussels IIa Regulation. As is well known, these provisions regulate the particular case where the court of the Member State of refuge has issued a non-return order pursuant to Article 13 of the 1980 Hague Child Abduction Convention and the court of the Member State where the child was habitually resident immediately before the wrongful removal or retention is allowed to review the issue of the child’s custody (and may even reverse the previous order). Two decisions issued by the Italian Supreme Court appear particularly significant in this regard. The first one42 can be considered a textbook case of application of the provisions at hand, in which the Supreme Court has clarified both procedural and substantial 39 Trib Padova, 14 September 2017, ITF20170914. 40 First Assessment Report (n 2) 44–45. 41 eg, Cass, 14 July 2006 No 16092, ITT20060714 (abduction case between Italy and Poland); Trib minorenni Milano, 30 April 2010, ITF20100430 (abduction case between Italy and the United Kingdom); Cass, 19 May 2010 No 12293, ITT20100519 (abduction case between Italy and Germany: the decision contained only a brief mention of Art 11(2) on the hearing of the child); Cass, 8 February 2017 No 3319, ITT20170208 (abduction case between Italy and Ireland). 42 Cass, 14 July 2010 No 16549, ITT20100714.

The Application of the EUFam’s Regulations in Italy  511 aspects of their functioning in the domestic legal order. As to the former, it held that, in the absence of any specific provision, the reference in Article 11(7) to the relevant ‘national law’ regulating the proceedings instituted before the court of the state of habitual residence should be Article 7(3) and (4) of the Law 64/1994, which governs return proceedings initiated under the 1980 Hague Child Abduction Convention.43 Paragraph 4 in particular establishes the direct appeal to the Supreme Court of the decree issued by the Juvenile Court in return proceedings under the 1980 Hague Child Abduction Convention. Consequently, according to the Supreme Court, this provision has to be extended to the proceedings under Article 11(7)–(8) of the Brussels IIa Regulation. As to the substantial part of the ruling, it was recalled that the court of the state of habitual residence should carry out a further and comprehensive evaluation of the factual circumstances and the legal grounds underlying the non-return order. The Juvenile Court of Palermo, having jurisdiction on the merits, reviewed the evidence already examined by the court of the state of refuge (the Tribunal of Cordoba, Spain), and confirmed that the conditions required for the exception set forth in Article 13(1)(b) of the 1980 Hague Child Abduction Convention were indeed fulfilled. Similarly, the second judgment44 concerned an abduction case in which an Italian court (the Juvenile Court of Florence), being the court of the place where the child habitually resided before the wrongful removal to Poland, was called upon to rule on the child’s custody after the Polish court (seised by the father) had issued a non-return order. In this regard, the Italian Supreme Court underlined the temporary ‘split’ of jurisdiction, under the Brussels IIa regime, between the authorities of the Member State where the child had moved (Poland) and those of the country of previous habitual residence (Italy), which should adjudicate, respectively, the issues of return or non-return and parental responsibility. In the case at hand, the Juvenile Court of Florence had properly retained its jurisdiction and extensively reviewed the grounds for the non-return that had been assessed by the Polish court (in particular, after considering the removal to Poland as wrongful, it took into account the settlement of the child in his new family environment and the inadequate parenting skills of the father). As a result, its final custody decision did not require the return of the child to Italy, and shifted, for the future, the jurisdiction on parental responsibility upon the courts of the new habitual residence (Poland).

D.  Provisional Measures The Italian case law classified in the EUFam’s database that deals with provisional and urgent measures issued according to Article 20 of the Brussels IIa Regulation is not particularly extensive. It should be preliminarily specified that the reported decisions regarded only measures taken in relation to children, which is predictable since they are often the most vulnerable subjects in cross-border family disputes. Even these few examples, however, do present some inconsistencies in the reasoning given to support 43 More precisely, these proceedings shall be held in closed session (camera di consiglio) before the Juvenile Court of the place where the child is located, which shall issue an enforceable decree. 44 Cass, 12 May 2015 No 9632, ITT20150512.

512  Diletta Danieli and Cinzia Peraro the adoption of such measures. Indeed, in some judgments the jurisdiction to take provisional measures was properly grounded on the provision at issue by recognising that the substance of the matter should be adjudicated by a court of another Member State, and then verifying that the three cumulative conditions in accordance with the relevant CJEU case law were present45 (ie, the measure must be urgent, it must be taken in respect of persons in the Member State concerned, and must be provisional).46 Conversely, in other instances the reference to Article 20 of the Brussels IIa Regulation seems mistaken insofar as the court already had jurisdiction to rule on the merits of the case,47 usually by virtue of Article 8 thereof because the child or children are habitually resident in Italy.48 Even though the outcomes of these decisions were not affected by the incorrect legal basis, they nonetheless could have been challenged for misapplication of the relevant provision. The reason for this occasional misunderstanding may be found in a specific feature of the domestic procedural system in family matters, which leads to an overlap between the provisional measures governed by the domestic law and the Brussels IIa Regulation. As mentioned above, in the Italian legal order the first hearing in separation proceedings takes place before the President of the court, who is allowed to issue provisional orders in the interests of the spouses and the children according to Article 708 of the Italian Civil Procedural Code. Such provisional measures, however, possess a broader scope of application than those based on Article 20 of the Brussels IIa Regulation. The latter instrument is in fact limited to the case where the judicial authority issuing these orders does not have substantive jurisdiction under the Regulation. This aspect, however, seems to have been overlooked in the judgments mentioned above.

E.  Lis Pendens With regard to the lis pendens exception in the context of the Brussels IIa Regulation, the present report provides a direct follow-up to two issues that have been already addressed in the Report on the Italian Good Practices and the First Assessment Report on the case law. This is particularly useful in order to monitor the developments that have occurred in the national case law. As to the first issue, the matter that shall be further discussed revolves around the problematic case where, pending proceedings before an Italian court first seised, a court of a different Member State second seised has issued its decision without having stayed

45 Case C-523/07 A [2009] ECR I-2805, ECLI:EU:C:2009:225 paras 45–65; see also Case C-403/09 PPU Jasna Detiček v Maurizio Sgueglia [2009] ECR I-12193, ECLI:EU:C:2009:810. 46 eg, Trib minorenni Milano, 5 February 2010, ITF20100205; Trib Cagliari, 12 December 2015, ITF20151212. 47 This aspect has been recently reiterated also by the CJEU, which stated that courts are enabled to grant provisional, including protective, measures under Art 20 of the Brussels IIa Regulation ‘provided that those courts do not base their jurisdiction, in relation to parental responsibility, on one of the articles in Section 2 of Chapter II of [that] regulation’: Joined Cases C-325/18 PPU and C-375/18 PPU Hampshire County Council v C.E., N.E. [2018] ECLI:EU:C:2018:739 para 84. 48 Trib Varese, 4 October 2010, ITF20101004; Trib Bologna, 17 February 2016, ITF20160217a; Trib Torino, 13 May 2016, ITF20160513.

The Application of the EUFam’s Regulations in Italy  513 the proceedings pursuant to Article 19 of the Brussels IIa Regulation. As it was underlined also during the Italian Exchange Seminar,49 a breach of this provision does not amount to a ground of non-recognition of the foreign decision, with the consequence that it must be recognised in the Italian legal order if the interested party so requests. Such a situation is precisely at the heart of a reference for preliminary ruling made by the Italian Supreme Court by order of 20 June 2017.50 The factual background of the case refers to parallel proceedings initiated before the Tribunal of Teramo (Italy) and the Tribunal of Bucharest (Romania), respectively first and second seised with matrimonial claims (separation in Italy and divorce in Romania), as well as child custody and maintenance. While the Italian proceedings were pending, by decision of 31 May 2010 the Tribunal of Bucharest, after dismissing the lis pendens exception raised by the husband, declared the divorce between the parties, awarded the custody of the child to the mother and granted the father the rights of access. Moreover, it issued a maintenance order against the father. This decision became final after being confirmed by the Court of Appeal of Bucharest on 12 June 2013. Meanwhile, the proceedings in Italy came to an end. In the final decision of 8 July 2012, the Tribunal of Teramo awarded the sole custody of the child to the father, ordering his return to Italy, granted the rights of access to the mother and issued a maintenance order against the mother. The Italian court furthermore dismissed the mother’s application for recognition of the decision issued by the Tribunal of Bucharest in 2010, noting that the proceedings in Italy had been initiated prior to those in Romania and the Romanian court had thus infringed Article 19 of the Brussels IIa Regulation by failing to stay the proceedings. The mother appealed this final judgment before the Court of Appeal of L’Aquila (Italy), again requesting the recognition of the Romanian decision. The Court reversed the lower instance judgment by allowing the res judicata exception and held that there were no grounds for nonrecognition of the Romanian decision. The case was then brought before the Italian Supreme Court, which referred to the CJEU a question of interpretation of the notion of lis pendens according to EU law and, more broadly, the effectiveness of the EU system of judicial cooperation and its basic principles of circulation and automatic recognition of judgments between Member States. Indeed, the Supreme Court maintained that the Romanian courts committed a manifest error of law in dismissing the objection of lis pendens raised by the father at each stage of the proceedings. This was the result of a misinterpretation of this rule due to the Romanian procedural law, which required the identity of the cause of action, the object and the parties in the concurrent proceedings. Notwithstanding the express wording of Article 19(1) of the Brussels IIa Regulation, the Romanian court considered the proceedings for legal separation and divorce to be inherently different, and thus did not apply the ‘first-in-time’ rule. Consequently, the final decision in Romania was issued by a court that had no jurisdiction on the case at hand, being second seised. According to the Italian Supreme Court, this was not only an infringement of a jurisdictional rule, but also of a principle pertaining to procedural public policy, namely the circulation of judgments within the EU. Moving from these considerations, the crucial issue became



49 Report 50 Cass,

on the Italian Good Practices (n 3) s 5. 20 June 2017, ITT20170620.

514  Diletta Danieli and Cinzia Peraro establishing whether Article 19 was only meant to be complementary to the jurisdictional rules of the Regulation (Articles 3–14), or whether its violation could furthermore amount to a ground of non-recognition, within the broader notion of procedural public policy, of a decision issued by a court of a Member State that was second seised. In this regard, Article 24 of the Brussels IIa Regulation expressly excludes only Articles 3–14 thereof from the notion of public order, but not the lis pendens rule. This is an issue that may indeed jeopardise the principle of mutual trust between Member States. Advocate General Bot has delivered his Opinion on 9 September 2018,51 in which he did not share the view proposed by the Italian Supreme Court regarding the consequences of the infringement of the lis pendens rule. Indeed, this rule could not be considered as important as those referred to in the context of the non-recognition of a decision on the basis of procedural public policy. In addition, a similar view would run counter the exhaustive list of the grounds of non-recognition laid down in Article 23 of the Brussels IIa Regulation, as well as the exceptional character of the public policy clause.52 More generally, the court of the Member State in which recognition is sought is prevented from refusing the recognition on the sole ground of an alleged misapplication of EU law. The Advocate General, however, acknowledged the possible exploitation of the lis pendens rule, especially when combined with the wide range of alternative grounds of jurisdiction provided by the Regulation in matrimonial matters, but also expressed confidence that Member States’ courts would properly apply Article 19(1) in light of the CJEU’s interpretation. According to the Opinion, only a violation of procedural rights having ‘higher rank’ (such as those granting the non-custodial parent the possibility to express his views, or the compliance with reasonable time-limits) may allow the non-recognition of a decision on the ground that it would be contrary to the public policy of the requested state (containing the fundamental rights guaranteed by EU law). On 16 January 2019 the CJEU issued the final judgment in this case,53 supporting the findings already made in the Advocate General’s Opinion. More precisely, it was reiterated that the court first seised should not refuse the recognition of a judgment rendered by the court second seised in breach of the lis pendens rule, as it would perform a review of the jurisdiction of the latter court, notwithstanding the exclusion of Article 19 of the Brussels IIa Regulation from the test of public policy as clarified in Article 24 thereof. Moreover, the CJEU recalled the narrow interpretation to be given to the grounds of non-recognition of a decision if it is manifestly contrary to public policy, pursuant to Articles 22(a) and 23(a) of the Regulation, these grounds being ‘an obstacle’ to the principle of mutual trust.54

51 Opinion of AG Bot in Case C-386/17 Stefano Liberato v Luminita Luisa Grigorescu [2018] EU:C:2018:670. It is worth mentioning that the questions raised by the Italian Supreme Court involved not only matrimonial and parental responsibility matters, but also maintenance obligations, and therefore they were reformulated by including the reference to Brussels I Regulation, which was applicable to the latter issues at the time of the dispute. 52 ibid, para 87. 53 Case C-386/17 Stefano Liberato v Luminita Luisa Grigorescu [2019] ECLI:EU:C:2019:24. Also in the final decision, the questions raised by the referring court were reformulated and answered in light of Brussels IIa and Brussels I Regulations. 54 ibid, para 55.

The Application of the EUFam’s Regulations in Italy  515 The second matter, which was already considered in the First Assessment Report,55 regards the lis pendens exception in the context of third states’ proceedings, for which the EU family law Regulations lack any specific provision. In particular, at the time of the drafting of that report, the United Chambers of the Italian Supreme Court were called upon to rule on whether jurisdiction grounded on Article 3 of the Brussels IIa Regulation was exclusive, and thus prevailed over the domestic rule on international lis pendens (Article 7 of the Italian PIL Act), or whether the latter provision was applicable in cases of parallel proceedings between Italian and third states’ courts.56 On 22 December 2017, the final ruling was issued57 and is therefore worth discussing here. Before analysing the contents of the judgment rendered by the United Chambers, it should be specified that it does not ‘directly’ tackle the substance of the question mentioned above, but actually assesses the preliminary issue of the nature of international lis pendens and its consequences on the legal remedies available in order to challenge the decision of the court second seised ordering the stay of the proceedings in such a situation. In this regard, the Supreme Court clarified a long-standing divergence in its case law by holding that the order to stay the proceedings issued by the court second seised did not entail any decision on its jurisdiction, which was exclusively up to the court first seised. Indeed, the powers conferred to the court second seised were limited to determining whether the lis pendens situation actually exists on the basis of the ‘first-in-time’ rule,58 thus amounting to a mere procedural finding and not to a ruling on jurisdiction. As a result, the only available remedy in the Italian legal system to challenge the decision ordering the stay of the proceedings due to lis pendens was the request for a mandatory ruling on the question of competence (regolamento necessario di competenza) pursuant to Article 42 of the Italian Civil Procedural Code, and not the request for a ruling on the question of jurisdiction by virtue of Article 41 thereof (regolamento di giurisdizione). As already observed, this conclusion essentially prevents the Supreme Court from further evaluating the relationship between EU and national rules on jurisdiction and lis pendens, having ruled that the latter issue does not involve any assessment on jurisdiction.

F.  Ancillary Maintenance Claims Also on this issue, this Report builds up considerations already put forward in the First Assessment Report on the case law. In particular, a question deserving further mention is whether Italian courts have been following the guidance provided by the CJEU as to the mutually exclusive relationship existing between the alternative heads of jurisdiction set forth in Article 3(c) and Article 3(d) of the Maintenance Regulation,59 which was clarified in a preliminary ruling requested by the Italian Supreme Court.60 From the national 55 First Assessment Report (n 2) 61. 56 Cass, 2 May 2016 No 11740, ITT20160502. 57 Cass, 22 December 2017 No 30877, ITT20171222. 58 More precisely, by ascertaining whether the requirement of the identity between the causes of action is indeed met, as well as the pending judgment before the court first seised. 59 Case C-184/14 A v B [2015] ECLI:EU:C:2015:479. 60 Cass, 7 April 2014 No 8049, ITT20140704. The final decision rendered after the preliminary ruling is also available on the EUFam’s database: Cass, 5 February 2016 No 2276, ITT20160205.

516  Diletta Danieli and Cinzia Peraro case law collected in the EUFam’s database, it seems that the mentioned CJEU decision has occasionally been interpreted too extensively, and namely considering the jurisdiction based on Article 3(c)–(d) as mandatory and limiting the alternative nature of the relationship with the other grounds of jurisdiction in Article 3(a)–(b).61 Nonetheless, there are also examples of proper application of these provisions in light of the CJEU ruling, even though sometimes this was not expressly recalled in the reasoning.62 In relation to maintenance claims, another recurring trend in the reported Italian decisions concerns jurisdiction grounded on Article 5 of the Maintenance Regulation, which is based on the appearance of the defendant before the court. Frequently, the further reference to such ground of jurisdiction appears unnecessary, to the extent that the court has already retained jurisdiction on the general grounds laid down in Article 3 thereof.63 Albeit this additional legal basis does not lead to different outcomes in the final decision, it should nevertheless be avoided in order to comply fully with the jurisdictional regime set forth in the Maintenance Regulation.

IV.  Matters Related to Applicable Law As far as the law applicable to legal separation, divorce and maintenance is concerned, the remarks already made in both the First Assessment Report on the case law and the Report on the Italian Good Practices seem to have been confirmed in the case law subsequently collected in the EUFam’s database.64 Therefore, it will not be further discussed here. On the contrary, taking into account the recent entry into force in Italy of the 1996 Hague Convention on the Protection of Children (1 January 2016) and the current lack of any implementing legislation, various issues have arisen when Italian courts were seised with parental responsibility proceedings under the Brussels IIa Regulation and had to determine the applicable law pursuant to the 1996 Hague Convention on the Protection of Children. The Italian case law collected in the EUFam’s database proves useful to show a number of these practical difficulties and this section thus focuses only on these matters. Firstly, it must be mentioned that the 1996 Hague Convention on the Protection of Children is often applied without ascertaining whether the other state involved in the case at issue is indeed a Contracting Party thereto. In those decisions where the international instrument indeed applies (ie, after its entry into force), Italian courts do not preliminarily verify whether it has actually been ratified by and entered into

61 Trib Roma, 4 November 2016, ITF20161104; Cass, 15 November 2017 No 27091, ITT20171115. The absence of any hierarchy between the heads of jurisdiction laid down in Art 3 of the Maintenance Regulation has indeed been reiterated also in Case C-468/18 R v P [2019] ECLI:EU:C:2019:666. 62 Trib Roma, 4 August 2017, ITF20170804. 63 eg, Trib Belluno, 27 October 2016 No 5217, ITF20161027; Trib Roma, 21 April 2017, ITF20170421a; Trib Roma, 5 May 2017, ITF20170505. In one case, the reference to Art 5 of the Maintenance Regulation was actually mistaken given the default of appearance of the defendant: Trib Padova, 3 March 2017, ITF20170303. 64 In particular, the practice of inviting the parties to make a choice of law under the Rome III Regulation by means of an agreement reached during the proceedings, even if national law does not expressly provide so, has become established in the Italian case law and has been thoroughly dealt with in the First Assessment Report (n 2) 68–70.

The Application of the EUFam’s Regulations in Italy  517 force in the other state(s) involved, but directly apply its relevant rules regarding the applicable law.65 This trend (common also to other Member States’ case law) may suggest a persisting unfamiliarity with the functioning of the Convention from an international law perspective, which differs from that of the EU Regulations. The recent entry into force of the 1996 Hague Convention on the Protection of Children in Italy has also given rise to uncertainties as to its temporal scope of application. As will be recalled, the general rule laid down in Article 53(1) of the Convention provides that it shall apply to measures taken in a state ‘after [it] has entered into force for that State’. However, there is no specific rule concerning proceedings that were pending and in which no measure had yet been taken at the date of entry into force, with the consequence that the laws of each Contracting State shall govern these situations. In this regard, two opposite approaches seem to have been followed in the reported Italian case law. In most cases, it was held that the situation fell outside the temporal scope of the Convention on the ground that the proceedings were already initiated before its entry into force.66 More rarely, the Convention provisions were applied in the final decision that was issued after that date.67 In the latter instances, the factual circumstance that appears to have justified the application of the 1996 Hague Convention on the Protection of Children to pending proceedings could be the lack of provisional measures taken at the time of its entry into force. However, it is not possible to infer any further guidance from these judgments since no specific reasoning on this point was given. In addition, the reference to the previous 1961 Hague Convention on the Protection of Infants still provided in Article 42 of the Italian PIL Act causes an ambiguity that may undermine the proper application of the 1996 Hague Convention on the Protection of Children in the Italian legal order, even though this provision is supposed to apply only on a residual basis.68 A further aspect emerging from the Italian case law regards the practical application of the Convention provisions on the applicable law (Articles 15–18). Namely, in the reported judgments, which typically involve judicial proceedings regarding separation or divorce and ancillary parental responsibility claims (rights of custody and/or access), there is no consistency in the reference to this conflict-of-laws regime. In most cases, Article 15 and/or Article 17 are recalled in order to determine the law applicable to the

65 eg, Trib Roma, 19 May 2017, ITF20170519a; Trib Roma, 7 July 2017, ITF20170707; Trib Aosta, 10 July 2017, ITF20170710; Trib Roma, ITF20170721a; Trib Padova, 14 September 2017, ITF20170914. 66 eg, Trib Roma, 8 March 2016 No 4804, ITF20160308; Trib Roma, 12 April 2016, ITF20160412; Trib Roma, 28 September 2016 No 17955, ITF20160928; Trib Roma, 14 October 2016, ITF20161014; Trib Parma, 2 January 2017, ITF20170102, which expressly states that the 1996 Hague Convention on the Protection of Children is applicable only to disputes initiated after its entry into force by virtue of the principle of non-retroactivity. In some of these decisions the 1996 Hague Convention on the Protection of Children was nonetheless recalled as an interpretative tool (‘in chiave dinamica’) to define the scope of the prior 1961 Hague Convention on the Protection of Infants (concerning the powers of authorities and the law applicable in respect of the protection of infants), which was applied in the instant cases by means of the reference ‘in any case’ to this instrument contained in Art 42 of the Italian PIL Act. 67 Trib Roma, 19 May 2017, ITF20170519a; Trib Belluno, 27 October 2016, ITF20161027. 68 In particular, the reference to Art 42 of the Italian PIL Act does not seem correct in those cases where the other state involved is a Contracting State of the 1996 Hague Convention on the Protection of Children, and thus its application would have been possible on a direct basis, ie, without recalling the domestic provision. For an example of this questionable approach see Trib Alessandria, 11 December 2017, ITF20171211.

518  Diletta Danieli and Cinzia Peraro claims on the exercise of parental responsibility rights.69 In rarer cases, Article 16 is also referred to in the context of judicial proceedings,70 even though it governs the applicable law to the attribution or extinction of parental responsibility whenever a judicial or administrative authority is not (actively) involved. However, it should be specified that the actual outcomes of the decisions remained unaffected by the different legal bases, given that national courts have in any case applied the Italian law – being both the lex fori and the law of the habitual residence of the child – and accordingly ruled on the merits of the parental responsibility issues at hand. A last remark to be made with regard to the collected Italian decisions concerns Article 36-bis of the Italian PIL Act,71 which qualifies as overriding mandatory rules those domestic law provisions concerning the attribution of parental responsibility to both parents, the parents’ duty to provide for child maintenance, and the powers conferred to the judicial authority to restrict or terminate the exercise of parental responsibility in order to protect the child. In particular, given that its condition of application is expressly ‘the reference to a foreign law’, it does not seem convincing to recall such provision in those situations where the Italian law in any case applies as determined through the relevant provisions of the 1996 Hague Convention on the Protection of Children.72 Furthermore, this practice of mistakenly applying a domestic rule could amount to a breach of international law (and EU law) performed by the state (more precisely, its judicial authorities)73 insofar as the domestic mandatory rule overrides the Convention provisions governing the applicable law.

V.  Matters Related to Recognition and Enforcement A.  General Remarks A specific assessment of the main trends in the application of the rules on recognition and enforcement of judgments laid down in the EU family law instruments seems challenging with regard to the Italian case law classified in the EUFam’s database, because very few decisions have dealt with these issues. Nonetheless, the practical application of the respective regimes (especially the Brussels IIa and the Maintenance Regulations) does not raise much concern,74 and proper references to the Italian PIL Act (Articles 64–67) 69 eg, Trib Roma, 21 October 2016, ITF20161021a; Trib Roma, 19 May 2017, ITF20170519a; Trib Roma, 7 July 2017, ITF20170707; Trib Aosta, 10 July 2017, ITF20170710; Trib Roma, ITF20170721a; Trib Padova, 14 September 2017, ITF20170914. 70 eg, Trib Padova, 25 July 2016, ITF20160725; Trib Belluno, 27 October 2016, ITF20161027; Trib Belluno, 9 November 2017, ITF20171109. 71 This provision was introduced by Legislative Decree No 154 of 28 December 2013 ‘Revisione delle disposizioni vigenti in materia di filiazione, a norma dell’articolo 2 della legge 10 dicembre 2012, n. 219’. 72 Trib Belluno, 27 October 2016 No 5217, ITF20161027; Trib Belluno, 9 November 2017, ITF20171109; Trib Lecco, 28 November 2017, ITF20171128. 73 Case C-224/01 Gerhard Köbler v Republik Österreich [2003] ECR I-10239, ECLI:EU:C:2003:513; Case C-173/03 Traghetti del Mediterraneo SpA v Repubblica italiana [2006] ECR I-5177, ECLI:EU:C:2006:391. 74 eg, Trib Bari, 27 April 2009, ITF20090427; Trib Roma, 18 December 2015, ITF20151218; Trib Roma, 19 January 2016, ITF20160119a; Trib Roma, 19 January 2016, ITF20160119c; App Catania, 9 June 2014, ITS20140609; App Milano, 19 September 2014, ITF20140919.

The Application of the EUFam’s Regulations in Italy  519 are made whenever the EU provisions do not come into play (ie, judgments rendered in third states).75

B.  Recognition of Foreign Decisions and Ruling on the Issues Not Dealt with by the Court of Origin The Italian case law in the EUFam’s database reports some cases in which national courts have been seised with proceedings concerning, on the one hand, the recognition of a foreign decision and, on the other hand, parental responsibility and/or maintenance claims that had not (or only to a partial extent) been adjudicated by the court of the state of origin. Under the Italian procedural law, these applications lodged with Italian courts have been considered as requests for modification of the conditions laid down in the separation or divorce judgment,76 and decided accordingly.77 More precisely, the approach taken can be clarified as follows. First, the seised court has recognised the foreign decision on separation or divorce pursuant to the Brussels IIa Regulation or the Italian PIL Act (depending on whether it had been issued by a Member State or a third state court). Then, after having assessed its jurisdiction on parental responsibility and/or maintenance claims and determined the respective applicable law, it ruled on the merits, thus modifying or supplementing the foreign ruling according to the new circumstances of the case. Even though this approach does seem to achieve positive outcomes on a factual basis, it nonetheless casts some doubts from a procedural point of view. The final decision does not actually modify any finding made in the previous separation or divorce conditions, but should rather be formally considered as a new application on parental responsibility and maintenance. This issue was already underlined in the discussion during the Italian Exchange Seminar, where the invitees concurred with the qualification of the application as a request for modification of the conditions of the foreign separation or divorce judgments, and was then mentioned in the Report on the Italian Good Practices.78

VI.  Concluding Remarks The overall assessment of the main trends that arose in the Italian case law classified in the EUFam’s database shows a generalised familiarity with the application of the EU Regulations on family law and the relevant international conventions. This is

75 eg, Trib Belluno, 5 November 2010, ITF20101105; Trib Reggio Emilia, 22 March 2014, ITF20140322; Trib Torino, 23 January 2017, ITF20170123; Trib Roma, 18 May 2017, ITF20170518. 76 In particular, under Art 710 of the Italian Civil Procedural Code as to the modification of the conditions of legal separation, and under Art 9 of the Italian law on divorce (Law 898/1970) as to the modification of the conditions of divorce. 77 Trib Roma, 17 February 2015, ITF20150217; Trib Roma, 21 October 2016, ITF20161021b; Trib Modena, 7 February 2017, ITF20170207; Trib Roma, 18 May 2017. 78 Report on the Italian Good Practices (n 3) s 2.

520  Diletta Danieli and Cinzia Peraro particularly evident with regard to the basic rules laid down in these legal instruments, such as their scope of application, or the key connecting factors for establishing jurisdiction and applicable law (especially the habitual residence). On the contrary, the main difficulties appear to stem from the fragmentation of the relevant rules among different legal instruments at the international and EU level, which actually implies an extensive knowledge of their functioning and coordination mechanisms. For instance, the interrelations between the Brussels IIa Regulation and the 1980 and 1996 Hague Conventions, as well as the Maintenance Regulation, are often misunderstood in the case law, resulting in a separate application of these instruments, or the application of one instrument instead of another. These considerations thus call for further support for the creation of a strong knowledge base of EU Private International Law in order to foster effective judicial cooperation. In this regard, useful tools (such as guidelines, practical handbooks or model forms) should not only be provided at the EU level, but also in each Member State taking into account the specific features of the respective procedural systems. These tools will ultimately be beneficial to both practitioners and end users and result in a smooth resolution of cross-border family disputes. Similarly, the establishment of forms of coordination between all actors involved in these proceedings is of the utmost importance to ensure the dissemination of positive practices across the EU judicial area.

34 The Application of the EUFam’s Regulations in Slovakia LENKA VÁLKOVÁ

I. Introduction A.  The EUFam’s Database and Slovak Practice The reasons leading to the inclusion of Slovakia and the Czech Republic in the EUFam’s target states during the later stage of the project were sufficiently explained in the Czech Report.1 It may be briefly reiterated that the extension of these two Member States within the EUFam’s project enabled the comparison of best practice between the South-West countries (France, Germany, Greece, Italy and Spain) and Central-East countries (Bulgaria, Croatia, Czech Republic and Slovakia). Different outcomes as to the practice of the courts of the ‘old’ 14 Member States and Slovakia were anticipated, due to the limited experience of the Slovak courts with the EU Regulations2 and the initial unavailability of the official Slovak version of the Brussels IIa Regulation (even more, due to the different wordings of the Slovak versions of the Brussels IIa Regulation in EUR-Lex and in the Official Journal).3 Moreover, possible concerns arising out of the application of the Brussels IIa Regulation were reported initially.4 Therefore, the expansion of the Member States involved in the EUFam’s project allowed for further 1 For more details see L Válková, ‘The Application of the EUFam’s Regulations in the Czech Republic’, in ch 31 in this book. 2 J Durisova, M Jurkova, Comparative Study of Residual Jurisdiction in Civil and Commercial Disputes in the EU. National Report for Slovakia 4 at ec.europa.eu/civiljustice/news/docs/study_resid_jurisd_slovakia_en.pdf. 3 The first Slovak version of the Brussels IIa Regulation was available only in EUR-Lex (with inaccurate ­translations). Certain professional circles assumed that Community Acts not published in the Official Journal were not binding for Slovak courts. Therefore, the Ministry of Justice published its own compedium (different than in EUR-Lex), which circulated among the judges. The text of the Brussels IIa Regulation consequently published in the Special Edition of the Official Journal contains further textual differencies, see M Haťapka ‘The Impact and Application of the Brussels II bis Regulation in Slovakia’ in K Boele-Woelki and C González Beilfuss (eds), Brussels II bis: Its Impact and Application in the Member States (Intersentia, 2007) 253–54. As to discrepancies between consolidated version and official text of the Maintenance Regulation published in Official Journal see section B.ii below. 4 In this respect see Haťapka (n 3) 247.

522  Lenka Válková analysis of best practice of the International Family Law of 14 Member States bound by the Brussels II Regulation before 1 May 2004 and of relatively ‘young’ Member States (such as Slovakia or the Czech Republic). On the other hand, the EU Regulations applicable since 1 May 2004 (the date when the Slovak Republic joined the EU), such as the Maintenance Regulation, enabled the monitoring of the development of the Slovak judicial practice all together with the ‘old’ 14 Member States. The gathering of Slovak judgments was carried out without great effort through the portal of Ministry of Justice of the Slovak Republic, which is freely accessible to the public (judgments are in the Slovak language).5 This portal provides for centralised electronic collection of judgments of the Slovak courts of all instances. Therefore, due to the electronic collection, the decisions issued by the Slovak courts of lower instances could be also analysed. As to quantitative data, 50 Slovak judgments have been examined and uploaded to the EUFam’s database, whereby 31 judgments were rendered by the courts of first instance, 15 judgments by the courts of appeal and four judgments by the Slovak Supreme Court. The Slovak courts mostly applied the Brussels IIa Regulation (40 cases), followed by the Maintenance Regulation (20 cases), and the 2007 Hague Maintenance Protocol (three cases). The application of the 2007 Hague Child Support Convention and Succession Regulation was not traced. Parental responsibility was main subject matter in 34 judgments, divorce in 14 cases, maintenance in 26 cases and child abduction in three cases.

B.  Brief Remarks on the Slovak Legal System Concerning International Family Law A few basic considerations will be made as to the Slovak legal system concerning family law which may be useful for understanding the national case law described below. Since 1 May 2004, EU legislation has prevailed over the laws of the Slovak Republic, as also recalled in Article 7(2) of the Slovak Constitution. Thus, the Regulations assessed within the EUFam’s project, ie, the Brussels IIa Regulation, Maintenance Regulation and 2007 Hague Maintenance Protocol, have precedence over the Slovak PIL Act.6 However, the Rome III Regulation, Matrimonial Property Regimes Regulation and Regulation on the Property Consequences of Registered Partnerships do not find application in Slovakia, since enhanced cooperation in the area of the applicable law in matrimonial matters and in the area of jurisdiction, applicable law and the recognition and enforcement of decisions on the property regimes of international couples, covering both matters of matrimonial property regimes and the property consequences of registered partnership, has not been established. In consequence, Articles 21(1) and 22(1) of the Slovak PIL Act remain applicable and provide that divorce and spouses’ property relations shall be governed by the law of the state of the spouses’ common nationality, or in the case of different nationalities, by Slovak law. The international conventions also supersede the rules of Slovak national law, as confirmed in Article 7(5) of the 5 At www.slov-lex.sk/web/en. 6 Act No 97/1963 concerning Private International Law and the Rules of Procedure relating thereto, as amended (Zákon zo 4. decembra 1963 o medzinárodnom práve súkromnom a procesnom) (‘PIL Act’).

The Application of the EUFam’s Regulations in Slovakia  523 Constitution7 (and as also recalled in Article 2 of the PIL Act).8 In fact, the Slovak Republic is a Contracting Party to the numerous bilateral agreements on the mutual legal assistance in family matters9 and to the Hague Conventions governing family matters.10 Moreover, Slovakia is bound by the 2007 Hague Child Support Convention and the 2007 Hague Maintenance Protocol by virtue of its approval by the EU. The Slovak PIL Act was adopted in 1963 and, after the division of Czechoslovakia in 1993, has remained effective in Slovakia. The PIL Act has undergone substantial changes. For example, a significant amendment to the PIL Act was introduced in 2003 by Act No 589/2003 Coll, in the context of the ratification of the 1996 Hague Convention on the Protection of Children.11 In particular, in order to reduce inconsistency between the Slovak PIL Act and the 1996 Hague Convention on the Protection of Children, the Slovak PIL Act abandoned the jurisdictional ground based on the nationality of the child in the matters concerning parental responsibility and child maintenance, and introduced a new jurisdictional ground based on the child’s habitual residence (Article 24 and 24(a)).12 In the event that national, EU or international PIL rules refer to Slovak substantive law, the Slovak Family Act must be applied.13 The provisions on marriage, relationships between parents, children and other relatives, maintenance, determination of parenthood and adoption are contained in the Family Act, whereas the spouses’ property regime (Articles 143–51) are governed by the Civil Act.14 In this regard, it is worth 7 Art 7(5) of the Slovak Constitution provides: ‘International treaties on human rights and fundamental freedoms and international treaties for whose exercise a law is not necessary, and international treaties which directly confer rights or impose duties on natural persons or legal persons and which were ratified and promulgated in the way laid down by a law shall have precedence over laws.’ On the official translation of the Constitution see www.prezident.sk/upload-files/46422.pdf. 8 Art 2 of the PIL Act provides: ‘The provisions of this Act shall be used, if not otherwise provided by an international treaty by which the Slovak Republic is bound or by the Act issued for the enforcement of an international agreement’, on the informal translation of the PIL Act see www.uaipit.com/uploads/legislacion/ files/0000004964_Private%20International%20Law.pdf. 9 See the list of the bilateral agreements www.justice.gov.sk/Stranky/Nase-sluzby/Medzinarodne-pravo/ Justicna%20spolupraca%20v%20obcianskych%20a%20obchodnych%20veciach/Pramene%20prava/ Dvojstranne-zmluvy.aspx. The bilateral agreements on mutual legal assistance concerning family matters were concluded, for example, with Afghanistan, Belarus, Cuba, Democratic People‘s Republic of Korea, Russia, Syria, and Ukraine. 10 1958 Hague Maintenance Convention (entered into for Slovakia 29 December 1970); 1970 Hague Divorce Convention (entered into force for the Slovakia 1 January 1993); 1973 Hague Maintenance Convention (entered into force for Slovakia 1 January 1993); 1980 Hague Child Abduction Convention (entered into force for Slovakia 1 February 2001); 1993 Hague Adoption Convention (entered into force for Slovakia 1 October 2001). 11 1996 Hague Convention on the Protection of Children (entered into force for Slovakia 1 January 2002). 12 In the Hague conventions previously signed by Slovakia (Czechoslovak Republic) the term habitual residence was translated into the Slovak language as bydlisko, which might be translated as domicile. Habitual residence was incorrectly translated by the term bydlisko, for example, in 1970 Hague Divorce Convention (Slovak Decree of the Ministry of Foreign Affairs No 131/1976 Coll); 1973 Hague Maintenance Convention (Slovak Decree of the Ministry of Foreign Affairs No 132/1976 Coll). On the other hand, in the previous 1958 Hague Maintenance Convention (Slovak Decree of the Ministry of Foreign Affairs No 14/1974 Coll.), the correct notion of obvyklý pobyt, ie, habitual residence, was used. Moreover, jurisdictional grounds based on the ‘residence’, or the ‘residence for a longer period’ was regulated already in 1960 in Slovak PIL Act. On habitual residence in Slovakia see E Júdová, ‘The Habitual Residence in Slovakian Private International Law’ (2007) 9 YBPrIL 471–79. 13 Act No 36/2005 Coll of 11 February 2005 on Family Act (Zákon o rodine) as amended (‘Family Act’). 14 Act 40/1964 Coll of 3 February 2012, on Civil Code (Občiansky Zákonník) as amended (‘Civil Act’).

524  Lenka Válková mentioning that according to Article 41 of the Constitution and Article 1 of Family Act, the marriage is defined as a unique union of one man and one woman: the Slovak legal order neither regulates same-sex marriages, nor registered partnership or similar same-sex unions.15 The conduct of the proceedings in matrimonial matters and matters concerning parental responsibility, maintenance and international child abduction is regulated by the Non-Contentious Civil Procedure Code,16 or in a subsidiary manner, by the Contentious Civil Procedure Code.17 As to the internal competence of the Slovak courts, the Slovak Republic has a two-level court system. Regional courts (krajský súd) decide appeals from decisions made by district courts (okresný súd). The competence for proceedings regarding a return of a child to the country of origin in the event of wrongful removal or retention is concentrated in three exhaustively listed district courts and three exhaustively listed regional courts (okresný a krajský súd v Bratislave, v Banskej Bystrici and v Košiciach). The Supreme Court (Najvyšší súd) hears extraordinary appeals in family matters. However, an extraordinary appeal is not admissible against a judgment declaring divorce, null or void marriage (legal separation is not known to the Slovak legal system), and against a decision in proceedings concerning the child’s return to country of origin in the case of wrongful removal or retention of a child.18 Moreover, in the event of matters falling within the jurisdiction of the Slovak courts, where the conditions of territorial competence lack or cannot be ascertained, the Supreme Court shall determine which court is competent to hear the case pursuant to Article 38 of Contentious Civil Procedure Code.

II.  Slovak Case Law on Cross-Border Family Disputes A.  Brussels IIa Regulation i.  Scope of Application As highlighted by the CJEU in 2018, the Brussels IIa Regulation does not contain any provision which expressly limits the territorial scope of all the rules relating to jurisdiction – only Article 1 of the Brussels IIa Regulation, which defines its scope, specifies the

15 On the proposals to reform the Slovak legislation in the context of registered partnerships see B Pavelkova, ‘Slovakia’ in L Ruggeri, I Kunda, S Winkler (eds), National Reports on the Collected Data in Family Property and Succession in EU Member States. National Reports on the Collected Data 575 at www.euro-family.eu/ documenti/news/psefs_e_book_compressed.pdf. 16 Act No 161/2015 Coll of 21 May on the Non-Contentious Civil Procedure Code (Civilný mimosporový poriadok) (‘Non-Contentious Civil Procedure Code’). 17 Act No 160/2015 Coll of 21 May on the Contentious Civil Procedure Code (Civilný sporový poriadok) (‘Contentious Civil Procedure Code’). 18 Except extraordinary appeals made by General Prosecutor according to Art 79(2) of Non-Contentious Civil Procedure Code, ie, in case of the existence of public interest. Moreover, according to Art 75 of the NonContentious Civil Procedure Code an action for revocation of the decision is also admissible against a final decision in the proceedings for the minor’s return to another country in respect of wrongful removal of a child or retention, unless the change or revocation of the decision can be achieved otherwise.

The Application of the EUFam’s Regulations in Slovakia  525 civil matters to which that Regulation applies and those to which it does not apply.19 The courts of the Member States may refer to their domestic rules only on the basis of the residual grounds of jurisdiction provided in Articles 7 and 14 of the Brussels IIa Regulation. Even though the major part of the collected decisions followed a proper approach as to the Regulation’s scope of application, some Slovak courts demonstrated persisting unfamiliarity with the Regulation and occasionally immediately reverted to the national PIL Act instead of the Brussels IIa Regulation.20 Moreover, the difficulties concerning the determination of certain aspects of the Regulation’s applicability were initially reported.21 Since the Slovak law distinguishes between a marriage annulment (matrimonium nullum) and a declaration that no marriage exists (non matrimonium), it was questioned whether the proceedings on declaring marriage non-existent should fall within the scope of the Brussels IIa Regulation. It was assumed in Slovak legal theory that this type of proceedings should fall within the Regulation’s scope.22 However, no judgment collected within the EUFam’s project concerning non matrimonium dispute has been found.

ii.  General Grounds of Jurisdiction a.  Dual Habitual Residence? The Explanatory Memorandum to the Amending Act of the Slovak PIL Act from 2003 could entail some uncertainties as to the interpretation of the notion of the habitual residence under the Brussels IIa Regulation.23 As stated above, the jurisdictional ground based on the habitual residence (obvyklý pobyt) was introduced into the Slovak PIL Act in 2003 as a jurisdictional ground concerning parental responsibility matters and child maintenance. The Explanatory Memorandum to the Amending Act of the Slovak PIL Act24 from 2003 provided that this term should be interpreted as the factual concept having strictly objective character and should be understood as the place where the person prevalently stays, whereby the intention of the stay in other place is not relevant.25 It was suggested by the Explanatory Memorandum that the Slovak courts should take into consideration the place of the person’s residence during the major part of the year, as well as the place of work and/or of study, and in case of child’s habitual residence,

19 Case C-393/18 PPU UD v XB [2018] EU:C:2018:835 paras 31 and 36. 20 See, eg, KS Trnava, 25 February 1964, 10CoP/33/2011, SKS20120113, which specified that court of first instance improperly applied Slovak PIL Act instead of the Brussels IIa Regulation. See also OS Nové Zámky, 21 January 2014, 12P/212/2013, SKF20140121, which properly applied the Maintenance Regulation, but not the Brussels IIa Regulation. 21 See Haťapka (n 3) 253–54. 22 ibid. 23 Act No 589/2003 Coll, of 3 December 2003 amending and supplementing Act No 97/1963 Coll on Private and Procedural International Law, as amended. 24 The Explanatory Memorandum to the Act No 589/2003 Coll at www.nrsr.sk/web/Dynamic/ DocumentPreview.aspx?DocID=187042. On the Explanatory Memorandum see also Júdová (n 12). 25 This may be in line with the Case C-111/17 PPU OL v PQ [2017] ECLI:EU:C:2017:436, where the CJEU provided that the mere intention of the parents is not sufficient to establish a child’s residence if the child has never been present in the particular state. However, sometimes the intention may play a role in the assessment, see case C-512/17 HR [2018] ECLI:EU:C:2018:513 para 46.

526  Lenka Válková the primary carer’s habitual residence and the place of schooling.26 The Explanatory Memorandum further specified, that the determination of the habitual residence of the older children can be more complicated: this may be the case when the child attends a school in Slovakia but lives with his/her parents in another state, or opposite, when the child lives with his/her parents in Slovakia but attends a school in another state. As recommended in the Explanatory Memorandum, in the first situation, the child’s attendance of the Slovak school on a daily basis may establish the presumption that the child is habitually resident in Slovakia. However, in the latter case, the mixture of two following factors may constitute a presumption that the child is habitually resident in other state: (i) the occasional stay of a child in Slovakia (during the weekends, etc), and (ii) the child’s attendance of school in another state on a daily basis. Lastly, it must be highlighted that the Explanatory Memorandum expressly admitted the possibility of a child’s dual habitual residence that is given due to the ‘different interpretation of the habitual residence in different Member States’. It means that the Explanatory Memorandum should serve as an interpretative guide in toto where the Brussels IIa Regulation is not applicable, or respectively, where the Slovak PIL Act is applied on the residual basis. Obviously, when the Brussels IIa Regulation is of application, the Slovak courts should interpret the notion of the habitual residence autonomously, while taking into account the CJEU case law.27 This should be remembered by the Slovak courts mainly when the Explanatory Memorandum may contradict the Brussels IIa Regulation, for example, this might be case as to the possibility of having a dual habitual residence. Therefore, the interpretation of the child’s habitual residence under the Brussels IIa Regulation provided in the following judgment by a Slovak court as to the child’s dual habitual residence is rather doubtful.28 It is interesting to note that although this judgment seems to be influenced by the Explanatory Memorandum, no reference to this Memorandum was made. In particular, in this case the Krajský súd Bratislava found that the child was habitually resident in both Slovakia and the Czech Republic, since ‘the emotional ties of child with the social and cultural environment were alternately shaped due to the child’s stay in both countries’. In other words, the parental responsibility was exercised alternatively by both parents in both states in accordance with the previous parents’ agreement (valid but unenforceable since it was not approved by the court). Although the Krajský súd Bratislava admitted in the judgment that the child’s habitual residence was located in both Member States, it stated that the mother wrongfully retained the child in the Czech Republic against the parent’s agreement and declared its jurisdiction according to Article 10 in connection

26 This also corresponds to Case C-523/07 A [2009] ECR I-02805, ECLI:EU:C:2009:225 para 39, where the CJEU stated that the place and conditions of attendance at school must be taken into consideration. 27 On the child’s habitual residence see Case C-523/07 A (n 26); Case C-497/10 Barbara Mercredi v Richard Chaffe [2010] ECR I-14309, ECLI:EU:C:2010:829; Case C-376/14 PPU C v M [2014] ECLI:EU:C:2014:2268; Case C-111/17 PPU OL v PQ (n 25); Case C-85/18 PPU CV v DU [2018] ECLI:EU:C:2018:220; Case C-512/17 HR (n 25); and T Kruger, ‘Finding a Habitual Residence’ in ch 11 of this book. 28 KS Bratislava, 28 January 2013, 11 CoP/508/2013, SKS20130128. In this judgment a question of lis pendens concerning pending proceedings in parental responsibility matters in front of the Czech and Slovak court was dealt as well, but on the basis of the facts reported therein it was not possible to evaluate the application of lis pendens rule (there were different proceedings concerning interim measure and parental responsibility as to substance).

The Application of the EUFam’s Regulations in Slovakia  527 with Article 2(11) of the Brussels IIa Regulation. A similar conclusion was reached by the Supreme Court in return proceedings according to Article 11 of the Brussels IIa Regulation. This case was firstly pending in front of the courts of lower instances: the Krajský súd Košice, as a court of appeal, did not identify any habitual residence, it simply affirmed that due to the child’s integration in the social and family environment equally divided in Slovakia and Italy (the child lived and attended school in both states on an equal basis), it was not possible to find the child’s habitual residence was in Italy and, therefore, the child could not be wrongfully retained in Slovakia. The Supreme Court held that the conclusion of the court of appeal regarding the non-existence of the child’s habitual residence would lead to an unacceptable result, and evaluated habitual residence through interpretation of the notion of ‘wrongful removal or retention’ under Article 2(11) in conjunction with the notion of ‘rights of custody’ under Article 2(9) of the Brussels II a Regulation.29 The Supreme Court specified that both parents held the rights of custody within the meaning Article 2(11) of the Brussels IIa Regulation, whereby the decisive factor for determination of the habitual residence was a common agreement of the parents; indeed, neither of the parents was entitled to decide to change a place of the child’s habitual residence without the prior consent of the other. The Supreme Court concluded that the right of custody was violated when the mother did not prove that the father gave consent to the child’s removal to Slovakia. Although both courts properly assessed the relevant factors such as proximity, social and family integration and duration of the stay, it was not unambiguous to identify only one habitual residence when the child had significant contacts with more than one Member State. It appears that, at least, according to the first judgment decided by Krajský súd Bratislava, the child can have dual habitual residence in two Member States. In spite of the fact that ‘accepting multiple habitual residences could make it impossible to determine whether one of the parents abducted a child’,30 the Slovak court, contrarily, found only one habitual residence for the purpose of establishing the jurisdiction in case of child abduction. Admitting this conclusion would mean that it is possible to find dual habitual residence in cases falling under Article 8, whereby in case of child abduction only one habitual residence is permitted, and the parents’ agreement must be considered. Also, the Supreme Court refrained from determining the child’s habitual residence – it simply determined the place of the habitual residence only ‘for the purpose of return proceedings’ by virtue of Article 2(11) in conjunction with Article 2(9) of the Brussels II a Regulation, which must be grounded on the parent’s agreement. In any case, it is questionable whether the conclusion on a dual habitual residence is well grounded because the factors established by the CJEU are intended to find a single habitual residence. b.  Other Factors Relevant to Finding Habitual Residence The collected case law has not revealed any significant difficulties concerning the determination of the relevant individual’s habitual residence.31 Still, it is regrettable that 29 Najvyšší súd, 30 April 2013, 6 Cdo 1/2013, SKT20130430. 30 See Kruger (n 27). 31 See, eg, KS Žilina, 26 January 2016, 5CoP/3/2016, SKS20160126; KS Nitra, 31 March 2016, 6CoP/10/2016, SKS20160331.

528  Lenka Válková the Slovak courts, sometimes, did not ground the application of Articles 3 or 8 of the Brussels IIa Regulation on habitual residence, or did not sufficiently explain the reasoning concerning the assessment of the habitual residence in the judgments.32 It is also interesting to note that in one judgment the Slovak court extended the CJEU’s interpretation of the autonomous concept of the child’s habitual residence to the domestic law under Article 39 of the Slovak PIL Act (where the court a priori rejected the application of the Brussels IIa Regulation, since ‘Switzerland was not a Contracting State to Brussels IIa Regulation’).33 Finally, apart from the question of determination of the term ‘habitual residence’, the time limit to the criterion of ‘duration’ of a stay of a child in the Member State was dealt with in one judgment. The court expressed its opinion that the period of one month of the child’s habitual residence in the Member State and the intention to stay permanently in such a Member State represented sufficient elements for the acquisition of a new habitual residence in such Member State (in this case, the petition for the child custody was filed on 29 March 2016, and on 5 March 2016 the child moved to another Member State).34 Although the factors of the ‘duration’35 and ‘intention’36 should be considered by the national courts when applying the EU Regulations, the courts should also pay attention to other relevant factors established by the CJEU. For example, factors may include regularity, conditions and reasons for the stay on the territory of a Member State and the family’s move to that state, the child’s nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that state.

iii.  Return of the Child Article 11(2) of the Brussels IIa Regulation provides that when applying Articles 12 and 13 of the 1980 Hague Convention, it shall be ensured that the child is given the opportunity to be heard during the proceedings unless this appears inappropriate with regard to his or her age or degree of maturity. The necessary requirement of the hearing of the child is provided also under Article 24(1) of the Charter and Article 12 of the UN Convention on the Rights of the Child. The relevance of this requirement is now expressly endorsed in the Brussels IIter Regulation in Recitals 39, 53 and 57. In one Slovak judgment, it pointed to the lack of a hearing for the child. In particular, according to the Supreme Court, the court of appeal failed to arrange the child’s hearing by virtue of Article 11(2) of the Brussels IIa Regulation, since the children must have the opportunity to be heard according to Recital 19 of the Brussels IIa Regulation, which highlights the important role of the child’s hearing in the application of the Regulation. Moreover, the Supreme 32 See, eg, OS Banská Bystrica, 27 March 2015, 31P/237/2014, SKF20150327, concerning application for divorce, parental responsibility and child maintenance, where the court simply stated that since the mother did not live with the father in the common household and moved to Slovakia with the child, the Slovak court had jurisdiction according to Arts 3(1)(a) and (8) of the Brussels IIa Regulation. See also OS Galanta, 30 May 2013, 17P/226/2012, SKF20130530; OS Galanta, 2 December 2014, 12P/306/2013, SKF20141202; OS Nitra, 1 July 2016, 11P/51/2016, SKF20160701. 33 KS Bratislava, 12 September 2012, 11 CoP/96/2012, SKS20120912. 34 OS Bratislava IV, 3 June 2016, 13P/74/2016, SKF20160603. 35 Case C-523/07 A (n 26). 36 Case C-111/17 PPU OL v PQ (n 25); Case C-512/17 HR (n 25) para 46.

The Application of the EUFam’s Regulations in Slovakia  529 Court ordered an expert assessment in order to examine whether the child, considering its age and degree of maturity, is capable of expressing its needs and its opinion about the return.37 This is consistent with the Brussels IIter Regulation, which leaves the question of who will hear the child and how the child is heard to the national law and procedure of the Member States.

iv.  Prorogation of Jurisdiction Article 12 of the Brussels IIa Regulation allows the parties to agree on jurisdiction of the court of the Member State, when the requirements therein are satisfied (such as best/superior interest of the child). In most cases the Slovak courts applied Article 12 flawlessly.38 However, two different issues created problems in practice: (i) form and time of acceptance of jurisdiction; and (ii) application of Article 12(3) in autonomous proceedings. a.  Form and Time of Acceptance of Jurisdiction Article 12 of the Brussels IIa Regulation provides that ‘the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner’ and that the parties need to agree on a Member State court ‘at the time the court is seised’. There is no unambiguous doctrinal approach on the international level whether the typical submission of appearance, as known, for example, from Article 26 of the Brussels Ia Regulation, may be recognised for the purpose of Article 12 of the Brussels IIa Regulation.39 The CJEU, also has tackled this issue in several judgments, but has not provided a clear answer.40 However, Brussels IIter Regulation brought some clarifications in this regard: from the wording of new Article 10 of the Brussels IIter Regulation follows that the parties, as well as any other holder of parental responsibility, must agree freely upon the jurisdiction, at the latest at the time the court is seised. Alternatively, they must expressly accept the jurisdiction in the course of the proceedings and all the parties must be informed of their right not to accept the jurisdiction. Moreover, the agreement must be in writing, dated and signed by the parties concerned or included in the court record in accordance with national law and procedure. 37 Najvyšší súd, 17 December 2013, 6Cdo/292/2013, SKT20131217. 38 OS Liptovský Mikuláš, 21 September 2012, 7P/26/2011, SKF20120921, where the parties expressly prorogued jurisdiction of the Slovak court by virtue of Art 12(3) of the Brussels IIa Regulation. See also KS Bratislava, 17 January 2013, 20 CoP/3/2013, SKS20130117, where the parties expressly prorogued the jurisdiction of the Slovak court by virtue of Art 12(1) of the Brussels IIa Regulation, where the Slovak court had jurisdiction for divorce under Art 3(1)(b) of the Brussels IIa Regulation. 39 On support, see A Gandia Sellens, ‘Jurisdiction’, ch 14 of this book. 40 It can be deduced from the CJEU case law that: a) acceptance of jurisdiction cannot be limited to the ‘time when the document instituting the proceedings is lodged with the court’ by virtue of Art 16 of Brussels IIa Regulation, but it covers party’s conduct that took place later (Case C-656/13 L v M [2014] ECLI:EU:C:2014:2364 paras 19, 21, 28; Case C-565/16 Alessandro Saponaro and Kalliopi-Chloi Xylina, Opinion of Advocate General Tanchev [2018] ECLI:EU:C:2017:942 para 60); b) by analogy it is possible to make a reference to Art 24 of the Brussels I Regulation (now Article 26 of the Brussels Ia Regulation) determining the tacit prorogation (Case C-215/15, Vasilka Ivanova Gogova v Ilia Dimitrov Iliev [2015] ECLI:EU:C:2015:710 para 42); and c) agreement of the party may be regarded as implicit in the absence of opposition after the date on which the court was seized, whereby opposition precludes the acceptance of the prorogation of jurisdiction (Case C-565/16 Alessandro Saponaro and Kalliopi-Chloi Xylina [2018] ECLI:EU:C:2018:265 para 32).

530  Lenka Válková Due to the fact that the current wording of Article 12 does not contain any similar rule and leaves certain gaps, the issue of form and timing of such acceptance of jurisdiction has arisen in Slovak courts, in two cases. The Okresný súd Revúca applied Article 12 of the Brussels IIa Regulation without providing any explanation as to the fulfilment of the requirements laid down in that provision (for example, as to the examination of the best interest of the child).41 From the judgment it appears that the father filed an application for parental responsibility, and in her legal response the mother agreed with the father’s statements as to the merits. It may be deduced from the judgment that the court established its jurisdiction according to Article 12, which was based on the parties’ acceptance made ‘otherwise in an unequivocal manner’, since the parties entered the proceedings (submitted legal acts as to substance) and did not contest the jurisdiction. In the second case, the court considered the jurisdiction of the Slovak courts to be expressly accepted by the holders of custody rights by virtue of Article 12 of the Brussels IIa Regulation when the father filed a custody action before the Slovak district court (which declared its lack of jurisdiction) and the mother’s acceptance may be deduced from her response to the petition as to substance, where she also sought the modification of the decision concerning the lack of jurisdiction declared by the Slovak district court. b.  Application of Article 12(3) in Autonomous Proceedings The second problematic issue concerned the application of Article 12(3) of the Brussels IIa Regulation in the autonomous proceedings. The Krajský súd Nitra stated that Article 12(3) of the Brussels IIa Regulation was not applicable for the autonomous proceedings, since this provision presupposes the existence of the ‘other proceedings’ related to parental responsibility.42 In addition, from the judgment it appears that the spouses agreed on the jurisdiction of the Slovak court under Article 12 of the Brussels IIa Regulation, but ‘such agreement was invalid since the Slovak court did not have jurisdiction for divorce under Article 3 of the Brussels IIa Regulation’. In this context, it must be highlighted that the Slovak court rendered this judgment before the CJEU interpreted Article 12(3) of the Brussels IIa Regulation in Case C-656/13, L v M. In this judgment, the CJEU decided that the jurisdiction of a court of a Member State under Article 12(3) of the Brussels IIa Regulation may be established even where no other proceedings are pending before the chosen court.43 Moreover, new Article 10 of the Brussels IIter Regulation, by changing the structure of the current Article 12 of the Brussels IIa Regulation, clarifies this issue and does not require any other proceedings for the purpose of its application.

v.  Jurisdiction Based on the Child’s Presence Article 13 of the Brussels IIa Regulation is generally rarely applied by the Member State courts,44 and was referred to by the Slovak courts in only one. This may well be due 41 OS Revúca, 30 December 2014, 6P/57/2014, SKF20141230. 42 KS Nitra, 31 January 2014, 8CoP/77/2013, SKS20140131. 43 Case C-656/13 L v M (n 40). 44 In the updated EUFam’s II database available at www2.ipr.uni-heidelberg.de/eufams/index.php?site=ents cheidungsdatenbank, only about 20 judgments.

The Application of the EUFam’s Regulations in Slovakia  531 to the fact that the court may establish jurisdiction under this provision only where a child’s habitual residence cannot be established, and jurisdiction cannot be determined on the basis of Article 12.45 Although the application of Article 13 in this Slovak judgment may be disputable, since the Slovak court would probably rather deal with the perpetuatio principle provided in Article 8 and examine in more details the child’s habitual residence at the time the court was seised (and therefore, the facts of the case will not be described), one interesting point which was mentioned by the court should be addressed. The decisive moment for determination of the child’s presence under Article 13 of the Brussels IIa Regulation is not determined.46 We may imagine a situation where a child does not acquire any habitual residence and the court of one Member State is seised by virtue of Article 13, but the child subsequently moves during the proceedings to different Member State(s). In such a case, it is questionable whether this relocation could cause conflicts of jurisdiction. Also, Article 11 of the Brussels IIter Regulation has not modified the wording of this provision. Therefore, the decisive moment for determination of a child’s presence should be probably determined by the national procedural law.47

vi.  Transfer to a Court Better Placed to Hear the Case Article 15 of the Brussels IIa Regulation enables transfer of the case to the court better placed to hear it, if there is one of the factual circumstances that prove a ‘particular connection’ to the other Member State within the meaning of Article 15(3). It was assumed in legal doctrine that a previous practice of the Slovak and Czech courts (without legal basis) could encourage the Slovak courts to send the case abroad and apply Article 15 of the Brussels IIa Regulation.48 However, the application of this provision was found in the EUFam’s database in only two cases. The first one can be considered a textbook case of application of the provisions of forum non conveniens, which concerned the substitute family care of the child of Slovak nationality, but habitually resident in the United Kingdom.49 The UK Supreme Court requested the Slovak court to assume its jurisdiction according to Article 15 of the Brussels II a Regulation. The Slovak court evaluated all the conditions set out in this provision and accepted its jurisdiction within the six-week term as provided in paragraph 5. Moreover, the UK Supreme Court cooperated with the Slovak Office for International Protection of the Child according to paragraph 6 and upheld that all conditions prescribed in Article 15 of the Brussels IIa Regulation were fulfilled. The second case dealt with the opposite situation – with the transfer at the request of the non-competent court under Article 15(2)(c) of the Brussels IIa Regulation.50 Although the Slovak court proceeded properly, the case pointed to two potential

45 See also Case C-497/10 Barbara Mercredi v Richard Chaffe (n 27) para 57. 46 Art 13 provides: ‘the courts of the Member State where the child is present shall have jurisdiction’. 47 This may also cover the principle of perpetuatio fori, known to many national procedural laws of Member States, when jurisdiction and competence are determined with regard to the law in force that existed at the time the application was filed, and subsequent changes in the law have no relevance. 48 ibid. 49 OS Michalovice, 21 October 2015, 23Pcud/6/2015, SKF20151021. 50 OS Bratislava II, 27 January 2014, 28P/277/2011, SKF20140127.

532  Lenka Válková problems regarding: (i) the time limit for the requested (competent) court to accept or reject the transfer of its jurisdiction; and (ii) the application of Article 15 in a case covered by Article 10, ie, in case of wrongful removal or retention of the child (as happened in the second case). These problems may be evaluated under the new Article 13 of the Brussels IIter Regulation, which fills both gaps. Article 13(2) of the Brussels IIter Regulation provides that the request for transfer of jurisdiction by a court of a Member State not having jurisdiction should not be permitted in cases of wrongful removal or retention of the child. Moreover, the requested court should accept the transfer of its jurisdiction within six weeks following receipt of the request.

vii.  Lis Pendens and Res Judicata The rule on lis pendens was rarely referred to and applied in the collected Slovak decisions. Prevalently, the rule did not cause any practical problems.51 However, in one instance, the Slovak court was called to decide on divorce in the presence of the alleged proceedings concerning legal separation in another Member State. In particular, the Slovak district court declined its jurisdiction due to the existence of a pending separation proceedings in Italy. This corresponds to Case C-489/14 A v B, where the CJEU decided that a situation of lis pendens may exist where two courts of different Member States are seised as to judicial separation proceedings in one case and divorce proceedings in the other.52 The Krajský súd Trnava, as a court of appeal, did not express its opinion as to application of lis pendens rule when the legal separation proceedings were pending in another Member State, it simply ordered the district court to verify all facts regarding the lis pendens (eg, as the date of commencement of the proceedings) for the purpose of application of Article 19(1) of the Brussels IIa Regulation.53 The matter of the relationship between the lis pendens and res judicata shall be further discussed. In the highly disputable Case C-386/17 Stefano Liberato v Luminita Luisa Grigorescu, the CJEU stated that Article 19 of the Brussels IIa Regulation precludes the courts of the Member State in which the court was first seised from refusing to recognise that judgment solely for the breach of rule on lis pendens.54 A similar approach was taken previously (in 2012) by a Slovak court in one judgment. In this case, the parallel proceedings practically existed during the course of the proceedings in front of the Slovak court, but only the final judgment as to substance issued by the Austrian court was delivered to the Slovak court.55 The proceedings for divorce and parental responsibility were pending as from 23 September 2011, in the Okresný súd Rímavská Sobota. The Austrian Court, which was seised on 30 March 2012 (the second seised court), issued a judgment as to substance in both subject matters in violation of the lis pendens rule. The Slovak 51 OS Žilina, 11 August 2014, 15P/52/2014, SKF20140811. 52 Case C-489/14 A v B [2015] ECLI:EU:C:2015:654. 53 KS Trnava, 23 September 2014, 25CoP/40/2014, SKS20140923. 54 Case C-386/17 Stefano Liberato v Luminita Luisa Grigorescu [2019] ECLI:EU:C:2019:24. On these discussions, see eg M Zühlsdorff, Report on the German Exchange Seminar 11 at www2.ipr.uni-heidelberg.de/ eufams/index.php?site=projektberichte. 55 OS Rímavská Sobota, 24 May 2012, 9P/8/2011, SKF20120524. Similarly, see OS Bratislava IV, 16 February 2015, 25P/280/2013, SKF20150216 (unfortunately, from the judgment it is not evident whether the Czech court violated the rule on lis pendens or not).

The Application of the EUFam’s Regulations in Slovakia  533 court dismissed its proceedings on the basis of the res judicata according to the Slovak procedural rules and stated that Austrian judgment must be automatically recognised in other Member States in accordance with Article 21 of the Brussels IIa Regulation. This decision is fully in line with Case C-386/17 Stefano Liberato v Luminita Luisa Grigorescu. The application of the national procedural rules on res judicata seems to be the only possibility for respecting this CJEU judgment and avoiding irreconcilable judgments due to the silence of the EU Regulations when the first seised court presumes it has jurisdiction under the Brussels IIa Regulation in the presence of the judgment delivered previously by other Member State court in breach of the rule on lis pendens.

B.  Maintenance Regulation i.  Scope of Application No specific problems regarding the scope of application of the Maintenance Regulation were identified in the collected Slovak case law. The most common mistake made by Slovak courts was, also in this case, the direct application of the Slovak PIL Act instead of the Maintenance Regulation.56 The maintenance claim was also sometimes exchanged with the parental responsibility matter claim and thus, the Brussels IIa Regulation was erroneously applied instead.57 Moreover, the courts seised for parental responsibility and maintenance sometimes extended their jurisdiction for parental responsibility according to the Brussels IIa Regulation into the maintenance matters without previous examination of the Maintenance Regulation.58 As to the temporal scope of application, the Slovak court properly differentiated between the proceedings initiated before 18 June 2011, ie, when the Brussels I Regulation must be applied, and after 18 June 2011, ie, when the Maintenance Regulation must be applied.59

ii.  Jurisdictional Grounds under the Maintenance Regulation Article 3 of the Maintenance Regulation establishes four jurisdictional grounds. As the CJEU clarified in Case C-468/18, these grounds are alternative and non-hierarchised, giving priority to the applicant’s choice.60 Although the Slovak courts in a few judgments failed to examine the jurisdiction according to all letters laid down in Article 3

56 KS Trenčín, 21 March 2012, 17CoP/19/2012, SKS20120321, where the court of appeal overturned the judgment of the court of first instance which applied the PIL Act. See also OS Lučenec, 21 November 2012, 17P/171/2012, SKF20131121. 57 OS Galanta, 2 December 2014, 12P/306/2013, SKF20141202; OS Nitra, 1 July 2016, 11P/51/2016, SKF20160701; KS Bratislava, 30 May 2014, 20CoP/53/2014, SKS20140530, where the court of appeal overturned judgments of the court of first instance which applied the Brussels IIa Regulation for a maintenance claim. 58 OS Dunajská Streda, 4 March 2014, 9P/88/2013, SKF20140304; OS Nitra, 2 October 2015, 20P/52/2013, SKF20151002. 59 OS Galanta, 15 January 2015, 17C/169/2010, SKF20150115. 60 Case C-468/18 R v P [2019] EU:C:2019:666.

534  Lenka Válková of the Maintenance Regulation (with no impact on the decision regarding its ­jurisdiction),61 in general, the Slovak courts are familiar with this provision.62 This may be demonstrated in the case decided by the Okresný súd Banská Bratislava, that properly applied Article 3(d) of the Maintenance Regulation in the proceedings concerning divorce, parental responsibility and child maintenance, since the child maintenance was a­ ncillary to parental responsibility.63 This opinion fully corresponds to the judgment of 16 July 2015 in Case C-184/14 A, where the CJEU held that an application relating to child maintenance is intrinsically linked to proceedings concerning parental responsibility matters since the court with jurisdiction concerning parental responsibility is in the best position to evaluate all facts in the application relating to child maintenance.64 On the other hand, it must be borne in mind that if the court has no jurisdiction to rule on an action in relation to the exercise of parental responsibility (Article 3(d)) it may have jurisdiction to rule on the claim concerning the maintenance obligation with regard to that child where it is: (1) also the court for the place where the defendant is habitually resident; or (2) the court before which the defendant has entered an appearance, without contesting the jurisdiction of that court.65 Although the case above demonstrated a reasonable application of Article 3 of the Maintenance Regulation, certain inconsistencies in application Article 3(a) of the Maintenance Regulation still remain due to the differences between the Slovak translation of the notion of the ‘defendant’ provided in Article 3(a) of the Maintenance Regulation in the original version published in the Official Journal and Corrigendum to the Maintenance Regulation.66 In the Slovak original version of the Maintenance Regulation published in the Official Journal, the term ‘defendant’ was initially translated into Slovak language as povinný, which practically means ‘debtor’. At the same time, the definition of povinný is provided in Article 2(1) point 11 of the Maintenance Regulation as any individual who owes or who is alleged to owe maintenance. However, the debtor under Article 2(1) point 11 of the Maintenance Regulation must be distinguished from the term defendant by virtue of Article 3(a) of the Maintenance Regulation, which was modelled on the basis of Articles 2 and 5(2) of the Brussels I Regulation. Other interpretations would be practically contrary to the favor creditoris principle and to Recital 15 of the Maintenance Regulation, which highlight the necessity to preserve the interest of the maintenance creditor, who is regarded as the weaker party in an action relating to maintenance obligations.67 However, as stated above, the term povinný in the 61 OS Rimavská Sobota, 13 November 2013, 2P/173/2012, SKF20131113; OS Žilina, 11 March 2014, 15P/6/2013, SKF20140311. 62 OS Prievidza, 10 April 2015, 7P/130/2012, SKF20150410; KS Bratislava, 30 May 2014, 20CoP/53/2014, SKS20140530; OS Prievidza, 22 October 2012, 17P/51/2012, SKF20121022. 63 OS Banská Bystrica, 27 March 2015, 31P/237/2014, SKF20150327. 64 Case C-523/07 A (n 26). 65 Case C-468/18 R v P (n 60). 66 Korigendum k nariadeniu Rady (ES) č. 4/2009 z 18. decembra 2008 o právomoci, rozhodnom práve, uznávaní a výkone rozhodnutí a o spolupráci vo veciach vyživovacej povinnosti [2011] OJ L 131/26. This problem was highlighted by M Vozáryová and K Burdová, ‘Slovakia’ in P Beaumont, M Danov, K Trimmings, B Yüksel (eds), Cross-Border Litigation in Europe (Oxford, Hart Publishing, 2017) 437. 67 FC Villata, ‘Obblighi alimentari e rapporti di famiglia’ (2011) RDI 733. See to that effect, Case C-433/01 Freistaat Bayern v Jan Blijdenstein [2004] ECR I-00981, ECLI:EU:C:2004:21 para 29; Joined Cases C-400/13 and C-408/13 Sophia Marie Nicole Sanders v David Verhaegen and Barbara Huber v Manfred Huber [2014] ECLI:EU:C:2014:2461 para 27 and 28; Case C-468/18 R v P (n 60) para 30.

The Application of the EUFam’s Regulations in Slovakia  535 Slovak version could have been found in Article 2(1) point 11, as well as in Article 3(a) of the Maintenance Regulation. Therefore, the Slovak translation was confusing when the Slovak courts could attribute to the term defendant by virtue of Article 3(a) of the Maintenance Regulation the very same meaning as ‘individual who owes or who is alleged to owe maintenance’. This could lead to the incorrect legal assessment concerning jurisdictional grounds based on Article 3(a) of the Maintenance Regulation by the Slovak courts when the debtor was in the position of the applicant. It is interesting to note that the proper translation of the respondent (odporca) was provided in the previous consolidated Slovak version.68 However, it must be borne in mind that the text of consolidated versions is meant purely as a documentation tool and has no legal effect, whereby the EU institutions do not assume any liability for its contents. In May 2011 the Slovak Corrigendum to the Maintenance Regulation was released, accurately correcting the notion of defendant. The EUFam’s database was a useful tool for verifying whether the incorrect Slovak translation had had a negative impact on judicial practice. Although some Slovak courts properly referred to the jurisdictional ground based on the habitual residence of odporca (ie, respondent),69 the case law collected within the EUFam’s project also revealed that the Slovak courts still often referred to povinný (debtor) in their judgments. On the other hand, when the respondent was identical person as the debtor,70 or where the jurisdiction was based on Article 3(b), 3(c) or 3(d) of the Maintenance Regulation,71 no problem arose in practice. The problem connected with the use of the term of povinný under Article 3(a) of the Maintenance Regulation was mainly evident in the case decided by the Okresný súd Čadca, where the court was of opinion that the habitual residence of povinný was in the Czech Republic and in consequence, Article 3(a) of the Maintenance Regulation was not applicable. Even more, the court did not verify the application of other letters of Article 3 of the Maintenance Regulation (ie, it did not examine the habitual residence of the creditor),72 which, as highlighted above, provides for the alternative and non-hierarchised criteria for jurisdiction.73 It is interesting that in another Slovak judgment, on one hand, the court properly referred to the term respondent. On the other hand, the court stated that the lack of a previous custody order, which should be rendered by the other Member State (in this case, Hungarian court), prevented the Slovak court from determining the child maintenance since it 68 See the consolidated version from 30 January 2009. 69 OS Nové Zámky, 21 January 2014, 12P/212/2013, SKF20140121. 70 See eg OS Prievidza, 22 October 2012, 17P/51/2012, SKF20121022, where the court referred to habitual residence of the ‘debtor’ and applied Art 3(a) of the Maintenance Regulation. However, the debtor was a respondent with habitual residence in Slovakia; similarly also KS Trenčín, 17CoP/19/2012, 21 March 2012, SKS20120321. See also OS Brezno, 28 August 2013, 2P/93/2013, SKF20130828, which quoted the consolidated text of Art 3(a) referring to habitual residence of a respondent in the judgment, but subsequently used the term debtor. However, in this particular case, the differences between the terms did not cause any problem as to examination of the jurisdiction since the habitual residence of the creditor was in the United Kingdom and habitual residence of the respondent (who was a debtor in this particular case) was in the Czech Republic. 71 OS Prievidza, 10 April 2015, 7P/130/2012, SKF20150410 (application of Art 3(b) of the Maintenance Regulation); KS Bratislava, 30 May 2014, 20CoP/53/2014, SKS20140530 (application of Art 3(b) of the Maintenance Regulation). 72 OS Čadca, 10 January 2016, 16Pc/6/2016, SKF20160110. 73 Case C-468/18 R v P (n 60) para 45.

536  Lenka Válková would not be possible to determine which parent had a right of care over the child and consequently, who was obliged to pay maintenance, ie, who was the defendant according to Article 3(a) of the Maintenance Regulation.74

iii.  Jurisdiction Based on the Appearance of the Defendant Article 5 of the Maintenance Regulation regulates jurisdiction based on the appearance in court of the defendant and provides that a court of a Member State before which a defendant enters an appearance shall have jurisdiction, unless he entered an appearance to contest the jurisdiction. In Case C-468/18 R v P, the CJEU interpreted Article 5 of the Maintenance Regulation and stated that this provision for jurisdiction is applicable by default where criteria under Article 3 of that regulation are not applicable.75 However, in one instance, this rule was applied automatically by the Slovak court without considering the application of Article 3(b) of the Maintenance Regulation, which could, probably, be of application.76

iv.  Lis Pendens It is interesting to note that majority of the collected case law shows that the lis pendens procedure under Article 12 of the Maintenance Regulation was activated by the Slovak courts when the courts of the Czech Republic were involved. The case law demonstrated the trend of proper application of the lis pendens rule between the Slovak and Czech courts in maintenance claims. This may derive from the fact that the Czech and Slovak courts do not face any problems related to the use of different languages.77 However, sometimes, the language and procedural similarities in Slovakia and the Czech Republic may result in negative consequences. This was a case in one ­Czech–Slovak dispute.78 The Czech court, seised by the father for termination of the child’s support, without considering the possibility of establishing its jurisdiction according to the Maintenance Regulation, transferred the case, at the mother’s request, directly to the Slovak district court according to the Czech procedural rules on territorial jurisdiction.79 Although the Slovak court stated that the transfer of the case according to the Czech procedural rules was not admissible due to the binding nature of the EU Regulations for any Member State’s courts, it practically evaluated its jurisdiction. In particular, the Slovak court acknowledged the jurisdiction of the Czech court under the Maintenance Regulation (the father seised the Czech court under the Maintenance Regulation), declined its jurisdiction according to Article 10 of the Maintenance Regulation and transferred the case back to the Czech courts. It has

74 KS Bratislava, 13 January, 11 CoP/362/2013, SKS20140113. 75 Case C-468/18 R v P (n 60) para 32. 76 OS Galanta, 30 May 2013, 17P/226/2012, SKF20130530. 77 OS Žilina, 11 August 2014, 15P/52/2014, SKF20140811; OS Partizánske, 25 August 2015, 3C/96/2014, SKF20150825. 78 OS Košice, 3 June 2015, 21 P/66/2015, SKF20150603. 79 Art 467 of the Czech Act No 292/2013 Coll. of 12 September 2013, on Special Court Proceedings (Zákon o zvláštních řízeních soudních) as amended, Official Gazette, 27 September 2013 No 112.

The Application of the EUFam’s Regulations in Slovakia  537 already been reported that the transfer of cases to Czech courts (and in the opposite direction) was practised by the Slovak and Czech courts with reference to the rules on territorial jurisdiction although there was no legal basis for such transfer.80 On the other hand, as already mentioned in the section dealing with Article 15 of the Brussels IIa Regulation, it was assumed that practice regarding false forum non conveniens could encourage the Slovak courts to send cases abroad and apply Article 15 of the Brussels IIa Regulation.81 However, due to the fact that no rule similar to Article 15 of the Brussels IIa Regulation is in the Maintenance Regulation, the Slovak courts shall disregard the request for transfer of the case under the national rules on territorial competence and proceed under the Maintenance Regulation (including Article 10 concerning the examination as to jurisdiction and Article 12 in case of pending proceedings before the Czech and Slovak courts).

v.  Recognition, Enforceability and Enforcement of Decisions Notwithstanding that Chapter IV of the Maintenance Regulation governing the recognition, enforceability and enforcement of decisions falling within the scope of this Regulation has been applied only in one case, this one judgment as an example of good practice is worth mentioning for a complete case law assessment. In this case, the Okresný súd Spišská Nová Ves was requested by the Slovak Office for International Protection of Children on 28 April 2014, to enforce the maintenance order, which was previously rendered by the Czech court.82 The Slovak court examined the temporal scope of the Maintenance Regulation, in particular the date of commencement of the proceedings in the Czech Republic (1 September 2009), the date of delivery of the Czech judgment (19 April 2012) through Article 75 of the Maintenance Regulation, which provides that sections 2 and 3 of Chapter IV (decisions given in a Member State not bound by the 2007 Hague Maintenance Protocol) shall apply to decisions given after the date of application of the Maintenance Regulation following proceedings begun before that date, in so far as those decisions fall with the scope of the Brussels I Regulation for the purposes of recognition and enforcement. Therefore, the court applied Articles 26, 28 and 30 of the Maintenance Regulation in a proper manner, verified if all documents required by this Regulation were produced and declared the judgment enforceable in Slovakia.

C.  2007 Hague Maintenance Protocol The 2007 Hague Maintenance Protocol was applied in only a few judgments and the Slovak courts demonstrated their familiarity with this international legal instrument,83 which is recalled in Article 15 of the Maintenance Regulation. However, in several 80 Haťapka (n 3) 249. 81 ibid. 82 OS Spišská Nová Ves, 5 May 2014, 15P/91/2014, SKF20150505. 83 KS Trenčín, 21 March 2012, 17CoP/19/2012, SKS20120321; OS Prievidza, 10 April 2015, 7P/130/2012, SKF20150410; OS Galanta, 30 May 2013, 17P/226/2012, SKF20130530.

538  Lenka Válková judgments the Slovak courts still applied the lex fori,84 the PIL Act85 or even in one case, the law applicable to parental responsibility (determined on the basis of the PIL Act) was automatically extended to child maintenance, without mentioning Article 15 of the Maintenance Regulation in conjunction with the 2007 Hague Maintenance Protocol.86 It must be borne in mind that when the creditor has seised the competent authority of the state where the debtor has his habitual residence under Article 4(3) of the 2007 Hague Maintenance Protocol, in the case of maintenance obligations of parents towards their children the law of the forum shall apply. In this regard, the CJEU also held in Case C-83/17 KP v LO, that the 2007 Hague Maintenance Protocol has close links with the Maintenance Regulation and enables the maintenance creditor to choose the law applicable to his maintenance obligations by providing that the law of the forum, instead of the law of the state of his habitual residence, when the creditor files his application before the court of the state of the debtor’s habitual residence.87 However, in one judgment the court did not follow this interpretation and did not refer to Article 4(3) of the 2007 Hague Maintenance Protocol, simply applying the law of the state of the habitual residence of the creditor according to Article 3(1) of the 2007 Hague Maintenance Protocol.88

D.  Fragmentation of Jurisdiction The most evident inconsistencies in applying the EU Regulations in family matters were identified in the context of fragmentation of jurisdiction. The lack of consistency between the different Regulations in matters concerning divorce, parental responsibility and maintenance may result in the proceedings pending in different Member States’ courts. The fragmentation of jurisdiction seems challenging mainly in the legal systems of the Member States which require the unity of the proceedings in family matters, as in Slovakia. According to Slovak law, matters relating to divorce, maintenance and parental responsibility must be decided in the unique proceedings. In particular, Article 24(1) of the Family Act provides: The court determines parental rights and responsibilities over the child for a time after the divorce in the judgment of divorce, in particular, the court determines which parent has custody right over a child and who represents and administers child’s assets. The court simultaneously orders the obligations to pay the maintenance to a parent whom a child was not entrusted into the personal care, or the court approves the parents’ agreement on the child maintenance.89

84 KS Žilina, 21 May 2015, 5CoP/37/2012, SKS20150521; OS Banská Bystrica, 27 March 2015, 31P/237/2014, SKF20150327; OS Nitra, 1 July 2016, 11P/51/2016, SKF20160701; OS Dunajská Streda, 4 March 2014, 9P/88/2013, SKF20140304. 85 OS Lučenec, 21 November 2012, 17P/171/2012, SKF20131121; OS Galanta, 2 December 2014, 12P/306/2013, SKF20141202. 86 OS Revúca, 30 December 2012, 6P/57/2014, SKF20141230. 87 Case C-83/17 KP v LO [2018] ECLI:EU:C:2018:408 para 49; Case C-214/17 Alexander Mölk v Valentina Mölk [2018] ECLI:EU:C:2018:744 paras 31 and 32. 88 OS Prievidza, 22 October 2012, 17P/51/2012, SKF20121022. 89 Informal translation provided by the author.

The Application of the EUFam’s Regulations in Slovakia  539 Also, Article 100 of the Non-Contentious Civil Procedure Code expressly provides that proceedings for the determination of parental responsibility for time after the divorce are connected with the divorce proceedings. By virtue of EU legal instruments in family matters prevailing over the national law rules, the Slovak courts often face the obligation to exclude certain matters (parental responsibility, maintenance, etc) from ‘a single national hearing’ even when the allocation of such proceedings would be precluded under the Slovak substantial and procedural law. The case law collected within the EUFam’s Project has pointed to several judgments where the Brussels IIa Regulation or Maintenance Regulation were not applied properly due to the existence of the above-cited Slovak rules providing for ‘unique family proceedings’. The first problematic situation arises when the jurisdiction for divorce proceedings and proceedings concerning parental responsibility under Articles 3 and 8 of the Brussels IIa Regulation must be fragmented.90 In proceedings concerning divorce and custody petition over the child habitually resident in Austria, the Slovak court, although it admitted its jurisdiction for divorce under Article 3(1)(b) of the Brussels IIa Regulation, affirmed that Austrian courts could establish their jurisdiction not only for divorce according to Article 3(1)(a) of the Brussels IIa Regulation, but also for parental responsibility under Article 8 of the Brussels IIa Regulation, and indeed, declared it did not have jurisdiction. The justification for the court’s conclusion was in the Slovak legal order requiring parental responsibility to be determined in the divorce judgment. It is interesting to note that according to the court, the declaration on lack of jurisdiction is authorised where there is another court of a Member State that could hear a case. However, the situation would be different in cases where no Member State courts are available to establish jurisdiction under Article 3 of the Brussels IIa Regulation. On the other hand, another judgment demonstrated a proper approach through the non-application of Slovak provisions, giving priority to the EU Regulations over the national law91 (specifically over Article 24(1) of the Family Act and Article 113 of Act No 99/1963 on Civil Procedure92). Also, the following two problems identified in the collected case law are mutually interconnected: (i) the extension of the child’s parental responsibility claim into the child’s maintenance claim by the courts; and (ii) subsequent declaration of lack of jurisdiction for maintenance under Article 3(d) without considering other letters of Article 3 of the Maintenance Regulation when the court cannot establish jurisdiction for parental responsibility under the Brussels IIa Regulation. In specific, the Slovak court automatically extended the claim on parental responsibility in a situation that only the child maintenance obligations were claimed, recalling Article 36 of

90 KS Bratislava, 30 September 2011, 5 Co 414/2011, SKS20110930. 91 KS Bratislava, 13 January, 11 CoP/362/2013, SKS20140113, the case was pending in front of Okresný súd Bratislava II, which declared that it had no jurisdiction for the parental responsibility due to lack of jurisdiction for divorce, although the Slovak court had jurisdiction according to Art 3(1)(a) and (b) of the Brussels IIa Regulation. 92 Act No 99/1963 on Civil Procedure was replaced on 1 July 2016 by Non-Contentious Civil Procedure Code. Art 100 Non-Contentious Civil Procedure Code is identical as Art 113 of the Act No 99/1963 on Civil Procedure.

540  Lenka Válková the Family Act.93 This provision provides that parents who do not live together may at any time agree on the exercise of their parental responsibility; if they fail to do so, the court may, of its own motion, determine their parental responsibility in a court decision. Although the court could recognise its jurisdiction under Article 3(a) of the Maintenance Regulation for maintenance obligations, it declared that it had no jurisdiction under Article 8 of the Brussels IIa Regulation in connection with Article 3(d) of the Maintenance Regulation, given the necessity to hear maintenance and parental responsibility matters in unique proceedings. A similar conclusion was reached also in other judgments, evoking the best interest of the children: according to the court, the Member State having jurisdiction for parental responsibility should decide the child maintenance.94 However, such conclusion is contrary to the interpretation of the CJEU which specified that the Maintenance Regulation provides for alternative and non-hierarchic criteria for jurisdiction which give priority to the applicant’s choice.95 Therefore, as provided by the CJEU, a parent may wish, in the child’s best interests, to withdraw the initial application concerning maintenance obligations so that the court with jurisdiction in matters of parental responsibility also has jurisdiction to rule on that application concerning maintenance obligations.96

III.  Concluding Remarks The limited experience of the Slovak courts with the EU Regulations was a primary concern.97 Although the initial experience of the Slovak courts was not always flawless, and indicated some scope for improvement in practice, the case law collected within the EUFam’s Project demonstrated a more than satisfactory capacity of the Slovak courts to deal with the EU Regulations in family matters. The main difficulty appears to be a result of the improper translation of the original version of the Maintenance Regulation into the Slovak language. In specific, the term ‘defendant’ under Article 3(a) of the Maintenance Regulation was initially translated into the Slovak language as ‘debtor’. Although the Slovak Corrigendum was published and an accurate translation of the term ‘respondent’ was provided in 2011, the case law suggests that the Slovak courts still often refer to the original version of the Maintenance Regulation (ie, using the wording of ‘debtor’) without taking into the consideration the subsequent Slovak Corrigendum. Such reference to the original version of the Maintenance Regulation resulted in the erroneous acceptance of jurisdiction or, the opposite, to the declaration of no jurisdiction. The most significant problems derive from the fragmentation of the relevant rules among different legal instruments in different family subject matters (ie, divorce, parental responsibility and maintenance). This is particularly evident with regard to the Brussels IIa



93 OS

Trenčín, 12 October 2016, 34P/140/2016, SKF20161012. Velký Krtíš, 21 November 2014, 7P/148/2014, SKF20141121. 95 Case C-468/18 R v P (n 60) para 45. 96 Case C-468/18 R v P (n 60) para 50. 97 Durisova, Jurkova (n 2) 4. 94 OS

The Application of the EUFam’s Regulations in Slovakia  541 Regulation and Maintenance Regulation, which must be applied ­simultaneously with Slovak national rules, whereby the Slovak rules require parental responsibilities and maintenance obligations to be determined in divorce judgment (Article 24(1) of the Family Act). The Slovak courts did not face the problem of characterising the subject matter, but they faced difficulties in implementing a proper methodology to deal with cross-border family cases. The Slovak courts gave precedence to the national rules, without examining the subject matter in an autonomous manner under the relevant EU Regulation. Only in cases when the connection of the proceedings was possible to reach was such a trend not evident: in the situation when the parties seise the same Member State, for example, as to divorce under Article 3 of the Brussels IIa Regulation, as to parental responsibility under Article 8 of the Brussels IIa Regulation and as to maintenance under Article 3 of the Maintenance Regulation. However, in case of unavailability of the connection of the ‘whole package family proceedings’ (proceedings concerning divorce and parental responsibility under the Brussels IIa Regulation and maintenance proceedings under the Maintenance Regulation) before a Slovak court, the persisting difficulties are apparent as demonstrated in section D. On the national level, Slovak judicial training and/or national guidelines taking into account the specificity of Slovak family law could be useful tools to address the topic of conflicting national and EU rules. On the EU level, several rules established in the EU Regulations, prevalently based on the will of the parties (Articles 12 or 15 of the Brussels IIa Regulation, or Article 4 of the Maintenance Regulation) may represent beneficial tools for enabling the concentration of jurisdiction of family proceedings in front of the Slovak courts.

542

35 The Application of the EUFam’s Regulations in Spain ROSARIO ESPINOSA CALABUIG, LAURA CARBALLO PIÑEIRO, CARMEN AZCÁRRAGA MONZONÍS, PABLO QUINZÁ REDONDO, GUILLLERMO PALAO MORENO AND CARLOS ESPLUGUES MOTA

I. Introduction A.  Scope and Purpose of the Report An examination of the statistics provided by the European Commission as well as the Spanish National Institute of Statistics (Instituto Nacional de estadística) on divorces in Spain leads to the conclusion that this country is one of the EU Member States with the highest number of cases on these matters.1 The same applies to separation and annulment of marriage, although these data do not have the same significance. Divorce figures diverge depending on the factor selected, such as the nationality of the spouses, their age, type of divorce (mutual agreement or contentious), their sex, civil status or number of children. For our purposes, and according to the nationality of the spouses, 97,960 divorces of mixed couples took place in 2017, the last available date. One of the spouses was a Spaniard in 85,870 divorces, 2,268 involved an EU national, and 1,589 a citizen of an African country, of which 1,148 involved at least one Moroccan national.2 Against this backdrop, it is clear that litigation on these matters before Spanish courts is significant and the application of Private International Law (PIL hereinafter) rules are mandatory. This report aims to examine how PIL rules on the matters covered by the EUFam’s Project are applied, taking into account that, along with the EU instruments, Spain has ratified several international conventions on family matters which also coexist with domestic rules, and has its own PIL rules. The latter can be found in Article 22 of the 1 Together with other countries as, for example, Denmark, Latvia, Lithuania, and Portugal. See ec.europa. eu/eurostat/statistics-explained/index.php/Marriage_and_divorce_statistics. 2 For example, in 2017, of a total of 97,960 divorces, 75,617 were by mutual agreement, of which 858 were between same-sex couples and 74,758 between heterosexual couples. Contentious divorces were a total of 22,343 – 180 between same-sex couples and 22,164 between heterosexual couples. Further information at www.ine.es.

544  Rosario Espinosa Calabuig, et al Law on the Judiciary (Ley Orgánica del Poder Judicial) when it comes to international jurisdiction,3 while Articles 9 and 107 of the Civil Code would provide the basic conflict rules.4 The report mainly focuses on the application in Spain of EU regulations on family matters, in particular the Brussels IIa Regulation, Rome III Regulation, and the Maintenance Regulation. There is interplay between these Regulations and the relevant international conventions in this area, principally the 1996 Hague Convention on the Protection of Children and the 2007 Hague Maintenance Protocol. The report does not deal, though, with the Succession Regulation,5 with the Matrimonial Property Regimes Regulation,6 nor with the Regulation on the Property Consequences of Registered Partnerships.7 The exclusion of these instruments is due to different reasons. Regarding the Succession Regulation, the reason for exclusion is the absence of case law due to its date of entry into application. As regards the other two instruments, the reason is that they fell outside the scope of the EUFam’s Project. After an exchange seminar held in Valencia on 24 October 2016, and the compilation of case law in the EUFam’s database and its examination, it has been possible to infer the current interpretation and application of EU law on family matters in Spain. The analysis reveals consistent awareness of EU regulations and a correct use of them among Spanish practitioners, in particular of the Brussels IIa and Maintenance Regulations. However, the case law also evidences some doubts about their application and criticism of the solutions provided therein.8 In this vein, this report also intends to identify problems derived from practice in the implementation process and elaborate proposals to improve the effectiveness of the EU instruments in Spain. The analysis of Spanish case law on the above-mentioned regulations and international conventions has been crucial. In particular, this report covers judgments rendered in Spain in the last years until December 2017, the date in which the EUFam’s Project was finalised. The results shown in this project as well as the development of the EUFam’s Project have been possible thanks to the collaboration between the academic members of the Spanish team and the Asociación Española de Abogados de Familia (AEAFA).9 All of us have addressed crucial issues, problems and possible solutions in relation to the practical application of these EU regulations and conventions. Many of them were discussed in the above-mentioned Spanish exchange seminar with the attendance of 18 academics, five judges, one state officer and 22 practitioners. 3 The 1985 Law on Judiciary has been amended by Organic Law 7/2015 of 21 July that included Art 22bis et seq. While Arts 22bis and 22ter deal with forum selection clauses, tacit submission and defendant’s domicile, Art 22quáter contains the special criteria on family matters. 4 See also Arts 49 and 50 of the Civil Code. 5 The Regulation is applicable to the succession of persons who died on or after 17 August 2015. 6 The Regulation is applicable from 29 January 2019, except for Arts 63 and 64 which apply from 29 April 2018, and Arts 65, 66 and 67, which apply from 29 July 2016. 7 The Regulation is applicable from 29 January 2019, except for Arts 63 and 64 which apply from 29 April 2018, and Arts 65, 66 and 67, which apply from 29 July 2016. 8 See R Espinosa Calabuig and L Carballo Piñeiro, Report on Spanish Good practices (2016), www.eufams. unimi.it. 9 In particular, thanks to Pilar Tintoré Garriga, President of the childhood and adolescence section, Barcelona Bar Association.

The Application of the EUFam’s Regulations in Spain  545

B.  Family Matters in the Spanish Legal System The current Spanish PIL system can be explained by Spanish history. Years of isolation after the Spanish Civil War led to a system that basically ignored the international element in PIL situations. It was not until the 1990s when the country started joining international codification processes and enthusiastically ratifying conventions, although not in a consistent manner. Remarkably, Spain is nowadays bound by 19 out of the 40 conventions and protocols adopted under the auspices of The Hague Conference on Private International Law.10 Another milestone occurred in 1985, when Spain became an EU Member State11 and thereby directives and regulations adopted in this field have significantly increased. Several reasons explain the further complexity of the Spanish PIL system: the number of instruments, the uncertain scope of application, and the risk of treaty collision.12 Moreover, forum selection and choice of law can be even more difficult if the peculiarities of each instrument are taken into account. For instance, Spain has made a reservation to the 1996 Hague Convention on the Protection of Children and its Articles 60 and 55(1)(a) and (b), according to which Spain ensures jurisdiction of its authorities to undertake protective measures over a child’s assets situated in its territory, and it also retains the right of not recognising parental responsibility or similar measures if they are incompatible with those adopted in Spain. During the exchange seminar held in Valencia in 2016, it was reported by the attendees that this reservation has already been used in a case where the assets were located in Barcelona and the child was in a third country.13 An additional source of complexity arises due to the fact Spain is a “multi-state system” with a not always clear distribution of competences between the state and the Autonomous Communities (Comunidades autónomas), of which there are 17 in total, together with the two autonomous cities of Ceuta and Melilla. Some of them have their own regional law. In this respect, Article 149(1)(8) of the Spanish Constitution allocates to the Spanish state exclusive competence on PIL matters, in particular to issues concerning conflict of laws. The same provision grants the Autonomous Communities’ competence on the conservation, amendment and development of their regional laws where appropriate. Within this framework, inter-regional conflict rules are clearly within the competence of the Spanish state. However, and due to the latter’s inactivity and the intrinsic link between substantive law and conflict rules, Autonomous Communities have stepped into the state’s shoes, which has led to litigation before the Constitutional Court. As mentioned above, the Spanish Parliament has competence to solve inter-regional conflicts of laws. However, the main rule is still Article 16(3) of the Civil Code, which

10 www.hcch.net/en/states/hcch-members/details1/?sid=69. 11 See C Esplugues Mota, ‘Derecho internacional privado’ in C Esplugues Mota, JL Iglesias Buhigues and G Palao Moreno, Derecho internacional privado 13th edn (Valencia, Tirant lo Blanch, 2019) 96. 12 See for an example of this complexity, in ch 27 of this volume L Carballo Piñeiro, ‘The Relationship between the 2007 Hague Maintenance Protocol and the Prior Hague Maintenance Conventions’. Spain has ratified all these instruments, which are in force in Spain. 13 See Espinosa Calabuig and Carballo Piñeiro (n 8).

546  Rosario Espinosa Calabuig, et al has only been amended once since the 1978 Spanish Constitution, in 1990.14 This provision does not directly address inter-regional conflicts of laws, but basically equates this type of conflict to PIL situations, thereby requiring the application of the conflict rules laid down in Article 9 of the Civil Code to inter-regional situations. The latter has only been revisited in family matters in 2015. In addition to the reference to Article 9, the role of Article 16 is to indicate that in inter-regional private matters, nationality as a connecting factor is to be substituted by the Spanish concept of civil neighbourhood (vecindad civil).15 The problem with this approach is that Article 16 specifically refers to the conflict rules laid down in the Civil Code. However, these rules have mostly been superseded by those laid down in EU or international instruments. While they have not been internally derogated, they have been displaced by conventions and EU regulations ratified or adhered to by Spain over the years. Despite the above, Article 16 has not been amended and the inactivity of the Spanish Parliament in these matters has led to a confusing situation where it is not clear whether inter-regional conflicts are still referring to Article 9 of the Civil Code or to the relevant EU instruments or international conventions.16 Most EU and international instruments tackle the situation of states with more than one legal system by providing rules which determine the relevant legal system to be applied in the particular PIL situation. However, there is confusion in Spain as to which Spanish law is applicable: the Spanish Civil Code (derecho común) or the regional laws. This confusion has led to many cases on family matters in which these rules are avoided and a particular regional law or simply Spanish law being applied without going through the additional effort of identifying the applicable law within the Spanish multi-legal system. This has been the case, for example, in Catalonia where some courts apply their regional law in matters like divorce, parental responsibility and maintenance obligations on the grounds of their Estatut d’Autonomia and without mentioning international instruments such as Article 14 of Rome III Regulation.17 The Spanish Parliament has also exclusive competence on procedural matters. When it comes to this field of law, some friction arises between EU instruments and national procedures on family matters. More specifically, the procedural treatment of marital breakdown in Spain tends to be unitary,18 meaning that all issues related to it such as the liquidation of matrimonial property, parental responsibility and

14 See Law 11/1990 of 15 October amending the Civil Code in application of the principle of nondiscrimination on gender grounds (BOE, 18 October 1990). 15 See E Zabalo Escudero, ‘Conflictos de leyes internos e internacionales: conexiones y divergencias’ (2016) 3 Bitácora Millennium DIPr 13. 16 See S Alvarez González, ‘Sahyouni más allá del espejo. Un comentario a la STJ de 20 de diciembre de 2017 (C-372/16)’ (2018) 35 REEI 15. 17 See E Zabalo Escudero, ‘El derecho aplicable a las situaciones privadas internacionales en los ordenamientos plurales’ in JJ Forner Delaygua, C González Beilfuss and R. Viñas Ferré (eds), Entre Bruselas y La Haya, Estudios sobre la unificación internacional y regional del Derecho internacional privado. Liber Amicorum Alegría Borrás (Madrid, Marcial Pons, 2013) 889. In the particular field of successions, see S Alvarez González, ‘El Reglamento 650/2012, sobre sucesiones y la remisión a un sistema plurilegislativo: algunos casos difíciles o simplemente llamativos’ (2015) 4 Revista de Derecho Civil 7; P Quinzá Redondo and G Christandl, ‘Ordenamientos plurilegislativos en el Reglamento (UE) de Sucesiones con especial referencia al ordenamientos jurídico español’ (2013) 3 Indret 1. 18 See the Spanish Civil Procedural Act (Ley de Enjuiciamiento civil 1/2000, of 7 January, Articles 769–78ter).

The Application of the EUFam’s Regulations in Spain  547 maintenance matters are consolidated with the proceedings dealing with the judicial separation or divorce of the couple.19 The fact that all these matters are split in different regulations, and not always coordinated between them, is deemed problematic by Spanish practitioners.20 The different degrees of legislative power existing in Spain do not affect the judiciary to the extent that it is a state power and Autonomous Communities do not have their own judiciary. The civil justice system is organised in 431 judicial districts with 895 single judge courts. Some of the courts of first instance in big cities are specialised in family matters. There are 95 collegiate bodies that also deal with family matters, high courts with a civil chamber that are set up in provinces, and superior courts of justice that cover Autonomous Communities. The Supreme Court is at the top of the Spanish judiciary and its first chamber deals with family matters.21 The Spanish Constitutional Court is not integrated within the Spanish judiciary. However, it also plays a key role in civil and PIL matters that are, of course, not disregarded by the Spanish courts. The specialisation of the judiciary in family matters is considered a significant advantage of the Spanish system that obviously helps in the sound application of PIL rules. However, and in light of the number of cases, there are insufficient specialised bodies. In fact, Spain is a country with increasing litigation, but does not have enough judges. The percentage of members of the judiciary per 100,000 inhabitants is 11.1.22 Moreover, the issue of violence against women has led to the establishment of specialised courts of first instance that basically deal with gender violence and thus criminal matters.23 These courts also deal with family matters to the extent that gender violence has an impact on family members as well. However, their focus on criminal matters does not make them the most appropriate to deal with these issues in terms of specialisation. Nevertheless, and in light of the complexities of the international framework, the Spanish judiciary has reacted by establishing a network of experts in EU law (Red de Expertos en Derecho de la Unión Europea), ie Spanish judges and magistrates who are not only specialised in EU law, but in a particular field in which they are also working. For our purposes, any judge in Spain dealing with an international case may contact judges specialised in family matters within the network in order to obtain their expertise in the case. It works remarkably well and for its achievements, the network has been granted the 2018 prize 19 See Arts 90 et seq of the Civil Code and C Esplugues Mota, ‘Las crisis matrimoniales’ in Esplugues Mota, Iglesias Buhigues and Palao Moreno (n 11) 476. Besides proceedings on annulment of marriage, judicial separation and divorce are laid down in Book IV, Title I, Chapter IV, Arts 769 et seq, of the Spanish Civil Procedure Act (Ley de Enjuiciamiento Civil). Art 748 establishes general rules on this type of proceedings and those dealing with the modification of measures adopted in the latter, also applicable to other proceedings included in the same Title I of Book IV on personal and family matters such as personal capacity, filiation, paternity and maternity, and adoption matters. See FP Blasco Gascó, Instituciones de Derecho civil. Derecho de familia, 3rd edn (Valencia, Tirant lo blanch, 2018) 288–300. 20 See Espinosa Calabuig and Carballo Piñeiro (n 8). 21 The abovementioned Law on Judiciary is the essential act when it comes to the judiciary’s structure. As to figures, see The Spanish Judiciary in Figures 2017. Judicial Statistics, provided for and published by the General Council of the Judiciary or Consejo General del Poder Judicial (hereinafter CGPJ), and available at www.poderjudicial.es (n 18). 22 See more details in L Carballo Piñeiro and J Nieva Fenoll, ‘The Impact of the Economic Downturn in the Spanish Civil Justice System’ (2015) 4 Erasmus L Rev 174. 23 See Organic Law 1/2004 of 28 December on integral protection measures against gender violence, that amended the Law on Judiciary to include a specialised court in its Art 87bis.

548  Rosario Espinosa Calabuig, et al of the Academy of European Legal Practice (Academia de Práctica Jurídica Europea). The latter is also engaged in disseminating EU law among Spanish practitioners. Along with these procedural singularities, some concepts laid down in the EU instruments do not easily fit in the Spanish legal system. That is the case of the concept of parental responsibility that has led to controversial amendments in the Spanish PIL system.24 In particular, the reception of the parental responsibility concept in Spain should be analysed with the following three scenarios.25 The first one deals with the protection of minors within a family. In accordance with Articles 154 and 156 of the Civil Code, non-emancipated children are under parental authority which is exercised jointly by both parents and in a manner that benefits the minor. This level of protection would be governed by the Spanish rules on the parent–child relationship and excluded from the parental responsibility concept and thus the relevant EU and international instruments. That would lead to the application of Article 22quater of the Spanish Law on Judiciary (Ley Orgánica del Poder Judicial) for international jurisdiction matters and Article 9(4) of the Civil Code for the applicable law. However, and given the scope of the Brussels IIa Regulation and the 1996 Hague Convention on the Protection of Children, these provisions are now only applicable to the establishment of filiation and related actions. The other two scenarios fit neatly within the parental responsibility concept and thus within the scope of Brussels IIa Regulation and the 1996 Hague Convention on the Protection of Children. The background of the second scenario is a matrimonial crisis that requires a court to decide on matters regarding children,26 while the third scenario requires the appointment of a minor’s guardianship in the absence or ­incapacity of the parents.27 International jurisdiction matters will be covered by the Brussels IIa Regulation and a number of international conventions such as the 1996 Hague Convention on the Protection of Children if the minor resides in a non-EU Member State, or the 1961 Hague Convention on the Protection of Infants which is only applicable when the minor does not reside in the EU or a country bound by the 1996 Hague Convention on the Protection of Children, ie China-Macao and Turkey. Conflict-of-laws matters are governed by the 1996 Hague Convention on the Protection of Children and issues not covered by the latter are covered by Article 9(6) of the Civil Code. In addition to this, Law 54/2007 of 28 December on international adoption has been amended to include some provisions on protection measures for minors without specifying the latter and creating more confusion around the parental responsibility concept.28 Shared custody is only laid down for exceptional cases in Article 92(5) of the Spanish Civil Code, and only after consensus on it has been reached between the parents, in a non-binding report of the Public Ministry, and following the hearing of the child and 24 Regarding the contradictions between the parental responsibility concept and traditional family law in Spain, see R Espinosa Calabuig, Custodia y visita de menores en el Espacio judicial europeo (Madrid, Marcial Pons, 2007) 38–78. 25 See C Esplugues Mota and JL Iglesias Buhigues, ‘Capacidad y régimen de incapacidades’ in Esplugues Mota, Iglesias Buhigues and Palao Moreno (n 11) 410–13. 26 See Arts 90 et seq of the Civil Code. 27 See Art 222 of the Civil Code. 28 See Esplugues Mota and Iglesias Buhigues (n 25).

The Application of the EUFam’s Regulations in Spain  549 where appropriate other interested parties, as well as experts. In other words, the rule in the Spanish legal system is to grant custody to one parent and right of access to the other. In contrast, some Autonomous Communities such as Catalonia and Aragón have established shared custody as the default regime unless the parents do not agree on it, or the superior interest of the minor dictates otherwise.29 Finally, the Maintenance Regulation raises interpretative issues related to the very concept of maintenance obligation. While this Regulation, in line with the doctrine set up in the De Cavel case law30 and Brussels I and Ia Regulations, covers alimony due to the former spouse after divorce within its scope of application, some courts still interpret this issue in accordance with the Spanish Civil Code, that uses a more restrictive concept of maintenance.31 This does not include the Spanish compensatory pension to the extent that it seeks to compensate a difference in the standard of living and not to provide assistance in a situation of need, and it is subject to the party autonomy principle, ie it is a right that can be only granted if the interested party applies for it and it can be negotiated between spouses, and can be renounced.32 The same applies to regional laws where it is regulated, such as Catalonia.33 Nevertheless, and in accordance with the CJEU case law, alimony is a concept to be interpreted in broad terms and thus will include obligations between relatives and between spouses and former spouses. Accordingly, the compensatory pension laid down in Articles 97 et seq of the Civil Code is to be characterised as maintenance obligation for EU law purposes regardless of whether the spouse is in need or not.34

II.  Matrimonial Matters A.  Brussels IIa Regulation. Scope of Application The Brussels IIa Regulation has a limited scope of application since it ‘should apply only to the dissolution of matrimonial ties and should not deal with issues such as the grounds for divorce, property consequences of the marriage or any other ancillary measures’.35 This limited scope may cause problems in countries where according to the procedural rules the judge is competent not only to dissolve the marriage, but also to rule on the liquidation of matrimonial property regime and the adjustment of the

29 See Blasco Gascó (n 19) 306–09. 30 Case 120/79 Louise de Cavel v Jacques de Cavel [1980] ECR 731, ECLI:EU:C:1980:70. 31 See below the Spanish case law and R Espinosa Calabuig, ‘Obligaciones alimenticias hacia el menor y su relación con la responsabilidad parental’ in MC Baruffi and R Cafari Panico, Le nuove competenze comunitarie. Obbligazioni alimentari e successioni (Padova, Cedam, 2009) 51; C Azcárraga Monzonís, ‘El nuevo Convenio de La Haya sobre el cobro internacional de alimentos para los niños y otros miembros de la familia’ (2008) REDI 491. 32 See Judgments of the Supreme Court of 2 April 1997 and 31 March 2011 (Judgment 217/2011 in CRJ2011/3137). Also of relevance the judgment of 17 of December of 2012 (Judgment 790/2012 in RJ 2013/477). 33 See Art 233 Catalan Civil Code. See broadly Blasco Gascó (n 19) 317–24. 34 Case C-220/1995 Antonius van den Boogaard v Paula Laumen [1997] ECR I-1147, ECLI:EU:C:1997:91. 35 See Recital 8 of Brussels IIa Regulation.

550  Rosario Espinosa Calabuig, et al parent–child relationship to the new family situation. This is precisely the case of Spain, as previously explained.36 In practice, and as underlined by the Spanish practitioners in the Valencia exchange seminar, problems may arise in particular in cases of private divorces and that of same-sex couples. In the first case, private divorces are not included in the Brussels IIa Regulation’s scope of application as already ruled by the CJEU in the Case C-281/15.37 In the follow-up Case C-372/16,38 the Court has excluded them from Rome III Regulation as well.39 There is doubt regarding the recognition of private divorces in Spain, as in any other Member State, if they are excluded from Rome III Regulation.40 For its part, same-sex marriage has been permitted since 2005 in Spain.41 In 2018, at least 15 out of 28 Member States allowed this type of marriage.42 At this point in time, it would be advisable to tackle the issue at the EU level to the extent that there might be cases where same-sex couples do not find a Member State jurisdiction to hear their judicial separation or divorce. If they cannot apply for judicial separation and/or divorce despite being EU citizens, the legal situation amounts to discrimination in comparison to other couples.43

B.  Brussels IIa Regulation and Jurisdiction Matters In general terms, Spanish courts have a good understanding of Brussels IIa Regulation and are aware of the primacy of EU Regulations over national law. However, there might be some misunderstandings in the use of PIL legal sources, as evidenced by Spanish case law.44 A good example of this practice is the judgment rendered by the Spanish

36 See Esplugues Mota (n 19) 476. See also C Esplugues Mota, El divorcio internacional (Valencia, Tirant lo blanch, 2002); B Añoveros Terradas, ‘The Impact and Application of the Brussels II bis Regulation in Spain’ in K Boele-Boelki and C Gonzalez Beilfuss (eds), Brussels II bis: Its Impact and Application in the Member States (Antwerpen, Intersentia, 2007) 279–95. 37 Case C-281/15 Soha Sahyouni v Raja Mamisch, order [2016] ECLI:EU:C:2016:343. See Espinosa Calabuig and Carballo Piñeiro (n 8). 38 Case C-372/16 Soha Sahyouni v Raja Mamisch [2017] ECLI:EU:C:2017:988. 39 Supporting the solution of the CJEU see P Diago Diago, ‘Inclusión de los “divorcios privados” en el ámbito de aplicación material del reglamento 1259/2010 del Consejo, de 20 de diciembre de 2010: sentencia del Tribunal de Justicia de la Unión Europea (Sala primera) de 20 de diciembre de 2017, asunto C-372/16, Sahyouni’ (2018) La Ley Unión Europea n. 58. Also supporting the judgment but with interesting critics Alvarez González (n 16) 15–20. Contrary to the perspective of the Court which favours the inclusion of private divorces in Rome III see SL Gössl, ‘Open Issues in European International Family Law: Sahyouni, “Private Divorces” and Islamic law under the Rome III Regulation’ (2017) EL Forum 68. 40 The Spanish legislator has been criticised for the quick replacement of the old conflict rule (Art 107(2) of the Civil Code) by the remission to the Rome III Regulation Alvarez González (n 16) 20. 41 Act 13/2005 of 1 July that modified Civil Code in matters of right to marriage. 42 In particular, Finland (2017), Slovenia (2015), Luxembourg (2015), Ireland (2015), United Kingdom (2014, with the exception of Northern Ireland), France (2013), Denmark (2012), Portugal (2010), Sweden (2009), Norway (2009), Spain (2005), Belgium (2003), Netherland (2001). See europa.eu/youreurope/ citizens/family/couple/registered-partners/index_en.htm; N Dethloff, ‘New models of partnership: the ­financial consequences of separation’ (2011) 12 ERA Forum 89. 43 See Espinosa Calabuig and Carballo Piñeiro (n 8). 44 For example, the judgment of the High Court of León (SAP) of 27 of February 2015 (Judgment 38/2015 in JUR 2015/99505) shows the perfect use of the legal sources existing now in matrimonial matters in Spain, not only in relation to jurisdiction rules but also to conflict rules. The case refers to a divorce of Portuguese

The Application of the EUFam’s Regulations in Spain  551 Supreme Court (Tribunal Supremo) on 21 November 2017.45 The judgment evidences the knowledge of the Tribunal Supremo regarding the Brussels IIa Regulation jurisdictional rules in a divorce case, in particular the interplay between all criteria laid down in Article 3 thereof, and its relation with the internal jurisdiction rule enshrined in Article 22 of the Spanish Law on Judiciary to which the Supreme Court arrives via Articles 6 and 7 of the Brussels IIa Regulation.46 In the particular case, a Spanish citizen filed a divorce claim against his British-Egyptian spouse to whom he was married in Las Vegas. His wife alleged that their common domicile had been fixed in Dubai where the couple had started several businesses. However, the husband pleaded that their residence was in Spain, in a house that he owned. Moreover, the wife had also denounced her husband on gender violence grounds before a Spanish court. In 2015, the husband presented a divorce claim before the court of first instance of Villaviciosa whose judgment was appealed by the wife and finally challenged in cassation by the husband before the Supreme Court. In order to establish Spanish jurisdiction, it was essential to determine whether the claimant had his habitual residence in Spain for six months before the proceedings were started, ie the doctrine set up by the CJEU in the Mikołajczyk case and others was taken into consideration.47 The Supreme Court also analysed whether the alternative character of the criteria laid down in Article 3 of Brussels IIa Regulation favours forum shopping and was contrary to the effective judicial protection as enshrined in Article 24 of the Spanish Constitution to conclude in the negative to the extent that those alternative criteria point to a close jurisdiction to the case48 and were not unpredictable for the spouses. Nevertheless, EU regulations are not always known and properly applied by Spanish courts. For instance, the Court of Appeal of Barcelona provides in its judgment of 4 February 201549 an example of assertion of Spanish jurisdiction without mentioning Brussels IIa Regulation, despite the couple being resident in Spain at the time of filing for divorce. In striking contrast, the judgment emphasised the Spanish nationality of the couple, who married as Moroccan nationals to claim jurisdiction in the case.

C.  Rome III Regulation and Conflicts of Laws The application of Rome III Regulation in Spain is hampered by the crucial issue of proof of foreign law. While Article 12(6) of the Civil Code lays down that conflict rules citizens with habitual residence in Spain and no children from the marriage. Regarding the assertion of jurisdiction, Art 3 of Brussels IIa Regulation is applied on grounds of the habitual residence of the couple in Spain as well as the other EU instruments on these matters. 45 Judgment No 624/2017 (RJ 2017\5094). 46 Unfortunately, this is used erroneously together with Brussels IIa Regulation. See G Palao Moreno, ‘La residencia habitual como criterio de jurisdicción en materia de divorcio en el Reglamento Bruselas II bis. Comentario a la STS de 21 de noviembre de 2017’ (2018) 35 REEI 9; E Torralba Mendiola, ‘La residencia habitual del demandante como criterio para establecer la competencia judicial internacional en un litigio en materia de divorcio’ (2018) 106 Cuadernos Civitas de Jurisprudencia Civil 453. 47 Case C-294/15, Edyta Mikołajczyk v Marie Louise Czarnecka and Stefan Czarnecki [2016] ECLI:EU:C:2016:772 paras 44–50. 48 According to the abovementioned Case C-294/15 Mikołajczyk (n 47) para 47. 49 Judgment No 53 of 4 February 2015 (JUR 2015/115355).

552  Rosario Espinosa Calabuig, et al are to be applied ex officio by courts, the Civil Procedure Law (Ley de Enjuiciamiento Civil of 2000) places the burden of proof of the designated foreign law on the parties to the proceeding. This has led in practice to legal uncertainty given that some judges apply foreign law of their own accord, while others simply apply Spanish law if the parties fail to prove the relevant foreign law. The operational rules enshrined in the Civil Procedural Law50 and subsequently in the International Legal Cooperation Act (Ley de cooperación jurídica internacional of 2015)51 have not contributed much to improve the situation. In this vein, a significant number of courts do not acknowledge the foreign element and directly apply Spanish law, not even mentioning the applicable conflict rule and thus the relevant EU Regulation. In many cases, this clearly frustrates the interests of one party to the proceedings. Nevertheless, the significance of the issue is somehow diminished nowadays by the fact that the connections chosen by EU PIL rules point to the lex fori in a significant number of situations. Hence, the prevalence of the habitual residence over nationality, eg in the Rome III Regulation, is to be positively assessed.52 Nevertheless, in the Spanish exchange seminar held in Valencia in 2016 some practitioners pointed out that Rome III Regulation does not sufficiently take into account third countries and the fact that EU judgments are intended to be recognised abroad. In family matters, this issue is of utmost importance. Comments have been made as result of the many cases handled in Spain involving Moroccan couples.53 Such cases may require the application of Moroccan law in accordance with Article 10 of Rome III Regulation. However, ordre public considerations may displace it in favour of Spanish law. For example, the judgment of the High Court of Barcelona of 12 November 2013 No 77754 dealt with a divorce between two Moroccan spouses residing in Catalonia with their son, presumably Moroccan as well. In this case, Moroccan law was, in principle, applicable to the divorce in accordance with Article 107(2) of the Spanish Civil Code, and the former domestic conflict rule now governs divorces not covered by Rome III Regulation. Spanish law was finally applied to this divorce because Moroccan law was considered contrary to Spanish public policy, given that divorce is not permitted in Morocco. Finally, Article 14 of the Rome III Regulation raises interesting questions about Spanish case law. This provision takes into account the case of Member States with more 50 See Arts 281 and 282, and R Espinosa Calabuig, ‘The Impact of the Proof of Foreign Law’ in ch 20 of this book; C Esplugues Mota, JL Iglesias Buhigues, G Palao Moreno, R Espinosa Calabuig and C Azcárraga Monzonís, ‘General report on the application of foreign law by judicial and non-judicial authorities in Europe’ in C Esplugues Mota, JL Iglesias Buigues and G Palao Moreno (eds), Application of Foreign Laws (Munich, Sellier, 2011) 6; C Azcárraga Monzonís, ‘Spain: The application of foreign laws in Spain – Critical Analysis of the legal novelties of 2015’ in Y Nishitani (ed), Treatment of Foreign Law – Dynamics Toward Convergence? (Cham, Springer, 2017) 329; L Carballo Piñeiro, ‘El carácter imperativo de la norma de conflicto y la prueba del derecho extranjero. Una relectura en clave procesal y constitucional’ (2001) 1 AEDIPr 26. 51 See Arts 33–36. About these new rules see broadly P Diago Diago, ‘La prueba del derecho extranjero tras la ley de cooperación jurídica internacional en material civil’ (2017) 17 AEDIPr 533. 52 See Espinosa Calabuig and Carballo Piñeiro (n 8). 53 See the Spanish case law at www.eufams.unimi.it. 54 SAP Barcelona No 777/2013 (JUR 2013\384151).

The Application of the EUFam’s Regulations in Spain  553 than one legal system, like Spain. However, this provision is systematically ignored by different judgments applying Catalan law on the grounds of the Catalan Autonomous Statute, without mentioning Article 14 of Rome III Regulation.55 While political reasons and the territoriality principle have been invoked by practitioners in order to ignore this Regulation, it has also been acknowledged that Article 14 of the Rome III Regulation has to be mentioned in these cases as well.56 In general terms, examples of good practices when applying the Rome III Regulation are increasing. The High Court of Asturias provides in its judgment of 2 February 2015 a good example by properly applying the Rome III Regulation in order to select the law applicable to a divorce.57 The judgment is also correct in establishing the law applicable to the matrimonial property regime in accordance with Article 9(2) of the Spanish Civil Code, which was replaced by the Matrimonial Property Regimes Regulation at the end of January 2019. However, the same judgment does not take into consideration either the Brussels IIa Regulation or Spanish Law on the judiciary to establish jurisdiction over the case. Another example is provided by the decision of the High Court of Cantabria issued on 13 January 2014.58 The court correctly stated the precedence of Rome III Regulation over Article 107 of the Spanish Civil Code. The latter enshrines the conflict rule on divorce and judicial separation matters applicable before the Rome III Regulation, and is still in force regarding marriage annulment. The High Court applied Spanish law to the extent that the spouses’ habitual residence was in Spain. In contrast, the abovementioned Spanish conflict rule would have submitted the case to the law of their common nationality, ie to Moldovan law. Nevertheless, it is worth mentioning that the High Court made an extra effort in explaining the application of Spanish law by reminding that, should Moldovan law have been designated, it could have not been applied because the parties to the proceeding failed to prove its content. While being a reminder of the significance in Spanish practice of the proof of foreign law, this judgment is also a good example of the confusion of some Spanish courts as to which instruments to apply. Although the Rome III Regulation was applied, the High Court seemed unsure about this instrument’s legitimacy to support the application of Spanish law, and the Court explained how the same outcome would have been reached should the national conflict rule have been applied. Finally, the Court rightly concluded that that the Rome III Regulation was not applicable to the patrimonial consequences of marriage dissolution. Finally, the decision issued by the Superior Court of Justice of Aragón 27/2015 of 6 October in relation to a divorce of Ecuadorian citizens whose marriage was celebrated in Quito should also be mentioned.59 As party autonomy had not been exercised, the objective connecting factors of Article 8 of the Rome III Regulation were applicable. Since both spouses had their habitual residence in Spain at the time the court was seised, Spanish law was applied.

55 See

below case law regarding maintenance obligations. See case law at www.eufams.unimi.it. Espinosa Calabuig and Carballo Piñeiro (n 8) 4–5. 57 JUR/2015/59253. 58 Judgment 40/2015 (JUR/2015/269616). 59 STSJ Aragón No 27/2015 of 6 October (RJ 2015\4645). 56 See

554  Rosario Espinosa Calabuig, et al

III.  Parental Responsibility Matters A.  Brussels IIa Regulation and Jurisdiction Matters In general terms, the scope of parental responsibility matters under the Brussels IIa Regulation is well known and properly interpreted by Spanish judges, in light of the relevant CJEU judgments as shown by the case law collected in the EUFam’s database. The fact that family matters are split between different regulations and conventions, and are not always coordinated between them, is problematic according to Spanish practitioners. However, the case law shows a general good use of the several EU regulations and international conventions coexisting in this field. For example, the judgment of the Court of First Instance and Instruction No 4 of Cornella de Llobregat, of 15 July 2015,60 dealt with the divorce of a Ghanaian citizen and a Spanish woman, both residing in Spain, the parental responsibility of their two children and maintenance obligations. The Spanish court correctly applied Article 8 of the Brussels IIa Regulation to justify its jurisdiction regarding parental responsibility.61 The concept of the child’s habitual residence has also been discussed by the Spanish judiciary, in particular in cases of international child abduction. In this vein, the Constitutional Court of Spain has indicated the relevance of the integration of children into their new environments. It has thus been understood that this is an essential factor in light of the 1980 Hague Child Abduction Convention.62 While this Convention is not within the scope of EUFam’s project’s, clarification of the habitual residence concept is essential for the proper functioning of the Brussels IIa Regulation.

B.  The 1996 Hague Convention on the Protection of Children and Conflicts of Laws Spanish case law on parental responsibility seems to have been evolving in a positive manner. For example, the High Court of Barcelona in its judgment of 23 October 2012 dealt with the judicial separation of a Spanish couple.63 While the husband was residing in the United Kingdom, the wife was with the children in Spain. Although the children expressed their interest in moving to the United Kingdom with the father, the mother appeared before the Court to keep the youngest daughter with her in Spain. The High Court correctly resorted to the 1996 Hague Convention on the Protection of Children, and Spanish law was applied to the children’s custody and right of access. In contrast, in the above-mentioned judgment of the Court of First of Instance of Cornella de Llobregat of 15 July 2015, Articles 9(4) and 9(6) of the Civil Code were applied to determine the law applicable to parental responsibility instead of the 1996 Hague Convention on the Protection of Children.

60 SJVM

n. 4 of Cornellà de Llobregat, No 32/2015 of 15 July (JUR 2015\237301). case law collected at www.eufams.unimi.it. 62 Judgment of 1 February 2016 (RTC/2016/16). 63 SAP Barcelona No 692/2012 of 23 October (AC 2012\1564). 61 See

The Application of the EUFam’s Regulations in Spain  555

IV.  Maintenance Matters A.  Maintenance Regulation: Scope of Application As already mentioned, some courts in Spain still interpret the concept of maintenance obligations in accordance with the Spanish Civil Code that holds a more restrictive concept of maintenance. A good example of this interpretation is the judgment of the High Court of Santa Cruz de Tenerife 429/2011 of 7 October64 involving a German couple who were already divorced, but who disagreed upon maintenance issues. The judgment focused on the law applicable to the maintenance obligation towards their child and alimony due to the former spouse. While Article 15 of the Maintenance Regulation and Article 3 of the 2007 Hague Maintenance Protocol were properly applied, and Spanish law was applied to the case of the son, alimony was granted to the wife in accordance with the Spanish conflict rule, ie Article 9(7) of the Civil Code.

B.  Maintenance Regulation and Jurisdiction Matters In the same line evidenced in other EU regulations, Spanish courts also apply properly the Maintenance Regulation in general terms.65 However, there are some issues as to modification of already established maintenance obligations, as can be learned from the judgment of the High Court of Cantabria of 8 October 2013.66 Article 8 of the Maintenance Regulation deals with this particular issue, but this provision is not mentioned in the judgment. In the case, the claimant was resident in Santander and the defendant, the child, resided with the mother in the Czech Republic. The High Court refused ex officio to assert jurisdiction indicating that Czech courts were better placed in accordance with letters a) and b) of Article 3 of the Maintenance Regulation. However, the claim sought to modify the obligation imposed on the claimant in favour of his son by a Spanish separation decision taken in 2004, when all of them were resident in Spain.67 64 SAP Santa Cruz Tenerife No 429/2011 of 7 October (JUR 2012\14443). 65 See the above-mentioned judgment of the Court of First Instance and Instruction No 4 of Cornella de Llobregat, of 15 July 2015. For instance, the High Court of Barcelona in its judgment of 260/2014 of 8 April decided the divorce of a Moroccan couple residing in Catalonia. Regarding the maintenance obligation, the Maintenance Regulation and the 2007 Hague Maintenance Protocol were applied leading to the assertion of jurisdiction and application of the Spanish law. In both matters, the relevant connection was the residence of the creditor in Spain. 66 AP Cantabria No 114/2013 of 8 October (JUR 2013/350297). About the problems on this issue see L Carballo Piñeiro, ‘Competencia judicial internacional y modificación de prestaciones de ejecución continuada: más allá de la STC 61/2000’ (2001) 1 AEDIPr 463; MA Michinel Álvarez, ‘La sentencia extranjera ante el cambio de circunstancias (con especial referencia a la condena de prestación periódica de alimentos’ (2002) 54 REDI 641; R Espinosa Calabuig, ‘Derechos de custodia, visita y alimentos atribuidos en una sentencia de divorcio dictada en Marruecos. Sentencia AP Barcelona (Sección 18ª), de 30 de septiembre de 2003’ (2004) 56 REDI 379. 67 According to Art 8(1) of the Maintenance Regulation: ‘Where a decision is given in a Member State or a 2007 Hague Convention Contracting State where the creditor is habitually resident, proceedings to modify the decision or to have a new decision given cannot be brought by the debtor in any other Member State as long as the creditor remains habitually resident in the State in which the decision was given’.

556  Rosario Espinosa Calabuig, et al

C.  Maintenance Regulation, the 2007 Hague Maintenance Protocol and Conflicts of Laws Despite initial confusion, Spanish courts have also learned to determine the law applicable to maintenance obligations in accordance with Article 15 of the Maintenance Regulation and more specifically, the 2007 Hague Maintenance Protocol. An example of the initial confusion of the Spanish courts in this field is the judgment of the High Court of Santa Cruz de Tenerife of 7 October 2011, regarding the divorce of a German couple residing with their son in Spain, who was born in this country. On the one hand, the court referred correctly to Article 15 of the Maintenance Regulation and Article 3(1) of the 2007 Hague Maintenance Protocol to determine the application of Spanish law to the child’s alimony claim. However, and surprisingly, the court applied domestic rules (Articles 9(1) and 107 of the Spanish Civil Code) to determine the applicable law to the maintenance obligation due to the spouse. German law as the law of the common nationality was finally applied. In contrast, a good use of the sources in this field was made with the above-mentioned judgment of 15 July 2015, issued by the court of first instance and Instruction No 4 of Cornella de Llobregat. The court applied correctly Article 15 of the Maintenance Regulation and Article 3 of the 2007 Hague Maintenance Protocol: Spanish law was applied according to the habitual residence criterion, and in particular the Catalan law was applied under the criterion of the civil neighbourhood of the child since birth. However, the court based its judgment on Article 14 of the Spanish Civil Code and not on Article 16 of the 2007 Hague Maintenance Protocol dealing with states with more than one legal system.68 Another example in which these rules were not taken into account was the judgment issued by the High Court of Barcelona 756/2014 of 4 December,69 regarding a divorce between Moroccan citizens, and their maintenance obligations. According to Article 3 of the 2007 Hague Maintenance Protocol, Spanish courts applied Catalan law directly, taking into consideration their Estatut d’Autonomia. A similar conclusion was reached by the High Court of No 773/2014 of 11 December,70 applying Catalan law to a maintenance obligation involving Moroccan citizens residing with their child in Mataró (Catalonia). There are cases, though, in which Spanish courts have applied the rules contained in the EU law on multi-state systems. That was the case of the above-mentioned judgment issued by the Superior Court of Justice of Aragón 27/2015 of 6 October in relation to a divorce of two Ecuadorian citizens with children of the same nationality. While Spanish law was applied in accordance with Article 3(1) of the 2007 Hague Maintenance Protocol, the regional law of Aragón was finally applied in accordance with Article 16 of this Protocol. The judgment of the High Court of Barcelona 70/2016 of 28 January71 decided on a maintenance claim brought by a mother against her daughter, both of Algerian 68 The High Court of Barcelona in its judgment 308/2015 of 12 May on a modification of maintenance obligations between German ex-spouses residing in Spain applied German law in spite of the spouses’ residence in Spain in accordance with Art 5 of the 2007 Hague Maintenance Protocol. 69 SAP Barcelona No 756/2014 of 4 December (JUR 2015\187068). 70 SAP Barcelona No 773/2014 of 11 December (JUR 2015\5898). 71 SAP Barcelona No 70/2016 of 28 January (JUR 2016\72228).

The Application of the EUFam’s Regulations in Spain  557 nationality. According to the Maintenance Regulation and Article 4(3) of the 2007 Hague Maintenance Protocol, the lex fori was applied, ie Catalan law without going through Article 16 of the 2007 Hague Maintenance Protocol.

V.  Concluding Remarks EU instruments on family matters have not always been applied by Spanish courts in an appropriate manner. However, this approach has shifted over the years towards a more thorough understanding of these regulations and their implications. In this vein, the steps taken by the Spanish judiciary to enhance judges’ and magistrates’ expertise on EU law have paid off. The plurality and overlapping of EU instruments and international conventions is considered to be one of the principal issues by Spanish practitioners when it comes to the application of PIL rules because it may trigger problems of coherence and lack of consistency.72 Moreover, the situation is growing in complexity as the number of judgments issued by the CJEU as well as the ECtHR is increasing.73 In practice, it is also remarkable that Spanish judges have not referred to the CJEU for a preliminary ruling in this field of law. This is probably because of the lack of technical support in drafting the questions, one aspect where the Spanish judiciary is consciously making efforts to improve. However, there are other reasons arising out of pressure to finish ongoing proceedings that are already subject to any other type of delays. In general, parties to the proceedings prefer to conclude proceedings instead of addressing the CJEU.74 The assertion of Spanish jurisdiction in line with the EU regulations does not pose particular problems. However, this is not the case of conflicts of laws. On the one hand, the establishment of the law applicable to a case is hampered by the issue of proof of foreign law. The Supreme Court along with the Constitutional Court have issued a number of controversial judgments according to which the burden of proof is allocated to the parties to the proceeding, despite provisions indicating the role of courts in establishing the contents of foreign law. In the end, the uncertainty as to who has to bring foreign law to the proceedings leads to a situation in which the lex fori is the one 72 See in general S Sánchez Lorenzo, ‘El principio de coherencia en el Derecho internacional privado europeo’ (2018) 70 REDI 17. In particular, regarding the practical application of instruments on divorce see R Espinosa Calabuig, ‘El divorcio internacional en la Unión Europea: problemas de coherencia y coordinación normativa’ (2016) 22 Revista Boliviana de Derecho 208. About this problem in relation to all the instruments regarding family law in the EU see R Espinosa Calabuig, ‘Cross-border family issues in the EU: Multiplicity of instruments, inconsistencies and problems of coordination’ in V Ruiz Abu-Gnim and MB Noodt Taquela (eds), Diversity and Integration in Private International law (Edinburgh, Edinburgh University Press, 2019) 65. About inconsistencies between the Brussels IIa and the Maintenance Regulations in relation to the minors, see also Espinosa Calabuig (n 31). Similar problems of inconsistencies arise from the Matrimonial Property Regimes Regulation. In this regard see P Quinzá Redondo, ‘La unificación – fragmentada – del Derecho internacional privado de la Unión Europea en materia de régimen económico matrimonial: el Reglamento 2016/1103’ (2017) 41 Revista general de derecho europeo 180; G Palao Moreno, ‘La determinación de la ley aplicable en los reglamentos en materia de régimen económico matrimonial y efectos patrimoniales de las uniones registradas 2016/1103 y 2016/1104’ (2019) 71 REDI 89. 73 See Espinosa Calabuig and Carballo Piñeiro (n 8). 74 ibid.

558  Rosario Espinosa Calabuig, et al preferred as the law governing the case. On the other hand, Spain is a state with more than one legal system, as regional laws live within the so-called common law issued by the central parliament. Against this backdrop, Spanish courts usually fail to apply the special rule laid down in the EU instruments to deal with this specific case. The positive note is that the significance of both issues is counterbalanced by the fact that, first, EU instruments use techniques to avoid the proof of foreign law and lead to the lex fori as the law governing the matters. Second, there are already examples in the Spanish practice of courts that do choose between Spanish common and regional law in accordance with the appropriate EU rules. In this vein, initiatives like EUFam’s project help to bring together judges, lawyers and academics, and engage them in a meaningful and fruitful discussion that can only be to the advantage of the rule of law.

part xi Deliverables of the Project

560

36 The Outcomes of the Online Questionnaire CATERINA FRATEA AND DILETTA DANIELI*

I.  Introduction to the Questionnaire A.  Preliminary Activities Workstream 1 of the EUFam’s Project is aimed at identifying the difficulties experienced by national courts and practitioners in the application of EU Private International Law instruments on family matters (namely the Brussels IIa Regulation, Maintenance Regulation, Rome III Regulation and Succession Regulation). In order to assess such difficulties, a series of national exchange seminars was organised in the second half of 2016 in Italy, Germany, Spain and Croatia in which selected practitioners, judges and academics with specific knowledge on the above-mentioned legal instruments took part, and the outcome of which was collected in the four reports drafted by the organising partner.1 Moreover, Workstream 1 of the project envisages the creation and the continuous update of the database that collects and classifies the national case law (of the countries involved in the project) applying the above-mentioned Regulations.2 The database entries are provided by the partners of the project and, on the basis of case law classified up to 10 June 2016, the team from the University of Milan (coordinator of the project) drafted the First Assessment Report. As a follow-up to these activities, the University of Verona was assigned the additional task to draft a questionnaire addressed at various categories of legal professionals in order to assess on a wider scale and among a larger number of practitioners the difficulties encountered in the interpretation and application of the EU Regulations, while also considering their interplay with the relevant Hague Conventions.

* Sections I–VII are attributed to C Fratea; section VIII is attributed to D Danieli. This chapter was finalised in April 2017 and took into account the project developments at that stage. 1 The reports are available at: www.eufams.unimi.it. 2 A public version of the database in Excel format is available at www.eufams.unimi.it.

562  Caterina Fratea and Diletta Danieli

B.  Contents of the Questionnaire The questionnaire was composed of 44 questions. The first two questions were aimed at collecting statistical data on the backgrounds of the participants. Addressees were assured that their participation in the questionnaire would remain confidential and its outcomes would be used for research purposes only. To this end, at the beginning of the questionnaire, they were only asked to indicate their country of location (question no 1) and their profession (question no 2) in order to have a clearer picture of the background of the professionals who took part in the survey. The other 42 questions (questions nos 3–44) were divided into six different sections related to the most important aspects of the application of the EU Regulations: • • • • •

matters related to jurisdiction (questions nos 3–25); matters related to applicable law (questions nos 26–28); matters related to recognition and enforcement (questions nos 29–40); matters related to cooperation between Central Authorities (questions nos 41–42); interrelations between EU Regulations and international Conventions (question no 43); • residual application of domestic rules of Private International Law (question no 44). The questions contained in each section were drafted and selected taking into account the critical issues arising from both the national exchange seminars and the case law entries of the database, as highlighted in the reports mentioned in the paragraphs above. A multiple choice answering system was envisaged where, in some cases, respondents could make their answer specific or make additional comments. Moreover, most of the questions provided the possibility to give more than one answer; therefore, in many cases the number of answers could be greater than the number of participants who actually replied to the question.

C. Dissemination Once drafted, the questionnaire was uploaded to the Surveymonkey online platform3 by the team of the University of Milan, so that each partner could easily forward it within their own networks. In fact, in order to ensure the questionnaire had the widest dissemination possible, all partners were both asked to circulate it among all the participants in the various exchange seminars4 and to send an invitation email on a wider scale. The template of this email was prepared by the University of Verona and, besides briefly describing the project and providing some practical instructions, it called academics,

3 The questionnaire was available at: it.surveymonkey.com/r/eufamsquestionnaire. 4 Without mentioning the project staff, according to the attendance sheets they were 36 for the Italian exchange seminar; 51 for the Spanish exchange seminar; 76 for the German exchange seminar; 43 for the Croatian exchange seminar.

The Outcomes of the Online Questionnaire  563 judges, legal practitioners, state officers and professionals pertaining to other relevant categories to fill it out. When sending the invitation email, all partners were requested to add the email address as carbon copy recipient, with the aim of monitoring as precisely as possible the number of associations and practitioners reached by the questionnaire. The partners of the project started to circulate the questionnaire at the end of February and the final deadline was fixed on 7 April 2017 in order to make it possible to discuss its results during the International Exchange Seminar held on 12 May 2017 at the Max Planck Institute in Luxembourg. From the data collected by means of the e-mail address [email protected], the dissemination carried out by each partner can be reported as follows. As to the Italian partners, AIAF (Italian Family Lawyers Association)5 was charged with the dissemination to family lawyers, SSM (Italian Judicial Academy)6 circulated the questionnaire among judges and the University of Verona through Italian academics of Private International and EU law. Moreover, in order to reach the highest number of participants possible, the University of Verona availed itself of the collaboration with other associations with which it had built previous collaborations, such as AIGA (Italian Association of Young Lawyers),7 the Italian branch of AIJA (International Association of Young Lawyers),8 the Lenford Network (an Italian association composed of lawyers committed to LGBT rights protection),9 CamMino (Association of Family and Children Rights);10 and the Verona section of the National Observatory on Family Law.11 The University of Milan also spread the questionnaire through AGAM (Association of Young Lawyers of Milan)12 and ADGI (Italian Female Lawyers Association),13 as well as other members of AIGA. Thanks to the University of Milan, it was also possible to reach selected staff members of the Slovakian and Czech Ministries of Justice, as well as a member of Czech academia. As to the Spanish partners, the collaboration between the University of Valencia and AEAFA (Spanish Association of Family Lawyers)14 made it possible to reach representatives of the Spanish academia and judiciary (Judicial Network on Family Law), as well as several national bar associations (i.e. the Bar of Valencia, Barcelona, Vigo, Pontevedra, Ferrol, Santiago de Compostela and A Coruña).15 The questionnaire was also circulated through the Spanish Private International Law blog Conflictus Legum16 and through SCAF (Catalan Association of Family Lawyers).17 5 In Italian, Associazione Italiana degli Avvocati per la famiglia e per i minori; www.aiaf-avvocati.it. 6 In Italian, Scuola Superiore della Magistratura; www.scuolamagistratura.it. 7 In Italian, Associazione Italiana Giovani Avvocati; www.aiga.it. 8 www.aija.org/en. 9 In Italian, Rete Lenford; www.retelenford.it. 10 In Italian, Camera Nazionale Avvocati per la Famiglia e i Minorenni; www.cammino.org. 11 In Italian, Osservatorio nazionale sul diritto di famiglia; www.osservatoriofamiglia.it. 12 In Italian, Associazione Giovani Avvocati Milano; www.agam-mi.it. 13 In Italian, Associazione Donne Giuriste Italia; www.adgi.eu. 14 In Spanish, Asociación Española de Abogados de Familia; www.aeafa.es. 15 In Spanish, Ilustre Colegio de Abogados de Valencia, de Barcelona, de Vigo, de Pontevedra, de Ferrol, de A Coruña; www.icav.es; www.icab.cat; www.icavigo.org; www.icapontevedra.com; www.icaferrol.es; www. icacor.es. 16 conflictuslegum.blogspot.it. 17 In Catalan, Societat Catalana d’Advocats de Familia; www.scaf.cat.

564  Caterina Fratea and Diletta Danieli The University of Heidelberg disseminated the questionnaire among German academia and to specialised associations of practitioners, such as the Scientific Association for Family Law,18 the New Association of Judges,19 DANSEF (German Association of Lawyers, Notaries and Tax Advisers for Family and Succession Law),20 ISUV (Association for Maintenance and Family Law),21 the Working Group on Family Law of the German Lawyers’ Association,22 DGFT (German Association for Family Law).23 The questionnaire also circulated through the German judiciary – both county courts24 and appellate courts25 – and through DIJuF (German Institute for Child Assistance and Family Law).26 In addition, it was possible to reach the Federal Office for Justice.27 Thanks to the contribution of the University of Osijek it was possible to reach Croatian practitioners (judges and lawyers), state officers as well as members of Croatian, Bulgarian and Hungarian academia. In addition, the Croatian Judicial Academy28 disseminated the questionnaire among Croatian judges. The Max Planck Institute of Luxembourg, besides contacting all the invited participants to the International Seminar and various Advocates General in Luxembourg, directed its dissemination of the questionnaire towards four other EU Member States, namely Belgium, Bulgaria, Greece and France. As for the first country, it was possible to reach various lawyers and the Association for the Rights of the Foreigners.29 As for the second country, the questionnaire was spread among members of the Supreme Bar Council,30 the Sofia Bar Association,31 the Supreme Judicial Council32 and the Sofia City Court.33 As for the third country, it circulated through the most relevant bar associations (ie, the Bar of Athens, Piraeus, Thessaloniki, Heraklion, Patra and Larissa),34 18 In German, Wissenschaftliche Vereinigung für Familienrecht e.V. Bonn; www.wv-familienrecht.eu. 19 In German, Neue Richtervereinigung; www.neuerichter.de. 20 In German, Deutsche Anwalts-, Notar- und Steuerberatervereinigung für Erb- und Familienrecht e.V.; www.dansef.de. 21 In German, Interessenverband Unterhalt und Familienrecht; www.isuv.de. 22 In German, Arbeitsgemeinschaft Familienrecht des Deutschen Anwaltvereins; anwaltverein.de/de/ mitgliedschaft/arbeitsgemeinschaften/familienrecht. 23 In German, Deutscher Familiengerichtstag; www.dfgt.de. 24 In German, Amtsgerichte. More precisely, it was sent to the following county courts: Karlsruhe, Stuttgart, Bamberg, München, Nürnberg, Pankow/Weißensee, Brandenburg a.d.H., Bremen, Hamburg‐Mitte, Frankfurt a.M., Rostock, Celle, Düsseldorf, Hamm, Köln, Koblenz, Zweibrücken, Saarbrücken, Dresden, Naumburg, Schleswig, Jena. The invitation e-mail was sent to the address of the respective administrative offices, and not to judges directly. 25 In German, Oberlandesgerichte. More precisely, it was sent to the following appellate courts: Karlsruhe, Stuttgart, Bamberg, München, Nürnberg, Brandenburgisches OLG, Hanseatisches OLG in Bremen, Hanseatisches OLG Hamburg, Frankfurt a.M., Rostock, Celle, Düsseldorf, Hamm, Köln, Koblenz, Pfälzisches OLG, Saarländisches OLG, Dresden, Naumburg, Schleswig-Holsteinisches OLG, Thüringer OLG. The invitation e-mail was sent to the address of the respective administrative offices, and not to judges directly. 26 In German, Deutsches Institut für Jugendhilfe und Familienrecht; dijuf.de. 27 In German, Bundesamt für Justiz; www.bundesjustizamt.de. 28 In Croatian, Pravosudna akademija; www.pak.hr. 29 In French, L’Association pour le droit des étrangers; www.adde.be. 30 In Bulgarian, Висш адвокатски съвет; www.vas.bg/bg. 31 In Bulgarian, Софийска адвокатска колегия; www.sak-sas.bg. 32 In Bulgarian, Висш съдебен съвет; www.vss.justice.bg. 33 In Bulgarian, Софийски градски съд; scc.bg/?page_id=5. 34 In Greek, Δικηγορικός Σύλλογος Αθηνών; www.dsa.gr; Δικηγορικός Σύλλογος Πειραιώς; www.dspeiraia. gr; Δικηγορικός Σύλλογος Θεσσαλονίκης; www.dsth.gr; Δικηγορικός Σύλλογος Ηρακλείου; www.dsh.gr; Δικηγορικός Σύλλογος Πατρών; www.dspatras.gr; Δικηγορικός Σύλλογος Λαρίσης; www.dslar.gr.

The Outcomes of the Online Questionnaire  565 the official Association of Judges and Prosecutors of Greece and the three law faculties of the country (National and Kapodistrian University of Athens, Aristotle University of Thessaloniki, Democritus University of Thrace),35 with particular emphasis on their respective departments that teach Private International Law. Moreover, the questionnaire was sent to the Research Institute of Procedural Studies,36 the Greek Association of Civil Law Jurists37 and Mr Ioannis Ioannidis (former State Secretary for Justice, Transparency and Human Rights). Lastly, as regards France, it was possible to reach the law firms Alexandre Boiché Avocats38 and CBBC Avocats,39 and the following specialised associations: the International Academy of Family Lawyers,40 the French Association of Youth and Family Judges and Magistrates41 and the National Association of Lawyers and Practitioners Specialised in Patrimonial and Extrapatrimonial Family Law.42 The various partners also sent the questionnaire to specific legal practitioners and judges with whom they collaborate and who have a consolidated experience on family Private International Law. The questionnaire included 771 participants from different Member States and from different professional backgrounds, resulting in the data reported below. Question no 1: Please indicate your country of location.

Three out of the 771 participants did not answer this question. Of the 768 who did: • • • • • • •

346 answered Italy (45.05%); 178 answered Spain (23.18%); 74 answered Croatia (9.63%); 70 answered Germany (9.11%); 17 answered Slovakia (2.21%); 16 answered Czech Republic (2.08%); 16 answered United Kingdom (2.08%);

• • • • • •

10 answered Greece (1.30%); 7 answered Bulgaria (0.91%); 7 answered France (0.91%); 4 answered Portugal (0.52%); 3 answered Austria (0.39%); 3 answered Luxembourg (0.39%);

35 In Greek, Εθνικό και Καποδιστριακό Πανεπιστήμιο Αθηνών; en.law.uoa.gr; Αριστοτέλειο Πανεπιστήμιο Θεσσαλονίκης; www.law.auth.gr/en; Δημοκρίτειο Πανεπιστήμιο Θράκης; law.duth.gr/index.en.shtml. 36 In Greek, Ερευνητικό Ινστιτούτο Δικονομικών Μελετών. 37 In Greek, Ένωση Αστικολόγων; www.enas.gr. 38 www.aboiche.com/accueil. 39 www.cbbc-avocats.com/cbbc. 40 www.iafl.com. 41 In French, Association Française des Magistrats de la Jeunesse et de la Famille; www.afmjf.fr. 42 In French, Association nationale des avocats spécialistes et practiciens en droit de la famille, des personnes et de leur patrimoine; www.avocatsdelafamille.org.

566  Caterina Fratea and Diletta Danieli • 17 answered ‘other countries’ (2.21%). When asked to specify, 6 participants responded Belgium, 2 Hungary, 1 Poland, 1 Russia, 1 Switzerland, 1 the Netherlands, 1 Guernsey (13 in total).43 The participants therefore were mainly (but not only) from the Member States to which the partners of the project belong. Italy turned out to be the state that registered the highest participation, perhaps because four out of 10 partners/associate partners of the project are Italian. Question no 2: Please indicate your profession.

Twenty-one of the 771 participants did not answer this question. Of the 750 who did: • • • • •

480 were legal practitioners (64%); 112 were judges (14.93%); 65 were academics (8.67%); 26 were state officers (3.47%); 86 ascribed themselves to other categories (11.47%). When asked to specify respondents listed the following: ○ 4 social workers; ○ 3 psychologists; ○ 1 teaching assistant; ○ 1 mediator; ○ 1 advisor/researcher; ○ 1 public notary; ○ 1 junior researcher; ○ 1 PhD.44

As to profession, from the answers to the second question it is therefore possible to infer that the vast majority of participants were legal practitioners.

II.  Matters Related to Jurisdiction This was the largest of the six sections, with 23 questions and their responses are reported below. Question no 3: On the basis of your knowledge/experience, do you think that the current regime of jurisdiction in matrimonial matters (Art 3 of Regulation No 2201/2003) is too claimant-friendly and favours the risk of forum shopping? 43 To be more precise, of the 17 participants who indicated ‘other countries’, one specified Italy, two Catalonia (Spain) and another indicated cumulatively Germany, Italy and Austria. These last four participants should better be ascribed to the respective relevant country and the number of participants from ‘other countries’ should be narrowed down to the 13 indicated. 44 Once again, however, it is necessary to clarify that, when asked to specify their profession, 72 participants defined themselves as lawyers, barristers, attorneys, avvocato or abogado; one as a judge, and one as Emeritus Professor. Therefore they could well be included in the legal practitioners, judges and academics categories respectively.

The Outcomes of the Online Questionnaire  567 631 participants out of 771 did not answer this question. Of the 140 who did: ○ 77 answered yes (55%); ○ 48 answered no (34.29%); ○ 15 had no opinion or did not know (10.71%). Question no 4: (If the answer to the previous question was in the positive), how could the provision be improved? (More than one answer is possible)

693 participants out of 771 did not answer this question. Of the 7845 who did: • 48 answered ‘by establishing a hierarchy among the existing grounds of jurisdiction’ (61.54%); • 38 answered ‘by introducing the possibility of entering into choice-of-courts agreements’ (48.72%); • 26 answered ‘by reducing the number of grounds of jurisdiction (eg, by removing the ground of jurisdiction based on the common nationality of the parties)’ (33.33%); • 4 answered ‘other’ (5.13%). When asked to specify: ○ 1 participant suggested to eliminate the ‘first to lodge’ rule; ○ 1 participant, not giving a different answer but only specifying one of the previous multiple answers, suggested that the hierarchy should be established between letter a) and b) of Art 3 of the Regulation; ○ 1 participant pointed out that no changes are needed.46 Question no 5: Based on your knowledge/experience, are the rules on child abduction provided in Art 11 of Regulation No 2201/2003 consistent with the 1980 Hague Convention on child abduction?

641 participants out of 771 did not answer this question. Of the 130 who did: • 88 answered yes (67.69%); • 27 had no opinion or did not know (20.77%); • 15 answered no (11.54%). Question no 6: In intra-EU child abduction proceedings between Member States, the rule provided in Art 11(4) of Regulation No 2201/2003 aims at reinforcing the effectiveness of the principle of immediate return of the child to the State of habitual residence by stating that a court cannot refuse to return a child on the basis of Art 13(b) of the 1980 Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his/her return. Based on your knowledge/experience, has Art 11(4) been referred to and applied in conjunction with Art 13(b) of the 1980 Hague Convention in practice? (More than one answer is possible in case you experienced different results in different cases)

45 It must be pointed out that this question implied a positive answer to question no 3, which nonetheless was given by 77 participants, not 78 as those who answered this one. Therefore, there might be one person who should not have answered to this question. 46 This answer should imply a negative answer to question no 3, so this participant might be the additional one referred to in n 45.

568  Caterina Fratea and Diletta Danieli 639 participants out of 771 did not answer this question. Of the 132 who did: • 58 answered ‘yes, they have been referred to and applied jointly’ (43.94%); • 50 had no opinion or did not know (37.88%); • 26 answered ‘no, only Art 13(b) of the 1980 Hague Convention has been referred to and applied’ (19.70%). Question no 7: Based on your knowledge/experience, since the Regulation No 2201/2003 became applicable (on 1 March 2005) how often has the specific procedure set forth in Art 11(6-8) for non-return orders in accordance with Art 13 of the 1980 Hague Convention been applied in practice?

639 participants out of 771 did not answer this question. Of the 132 who did: • 56 had no opinion or did not know (42.42%); • 48 answered ‘seldom (1–5 cases)’ (36.36%); • 28 answered ‘often (more than 5 cases)’ (21.21%). Question no 8: Based on your knowledge/experience, has the rule on prorogation of jurisdiction (Art 12 of Regulation No 2201/2003) been referred to and applied in practice? (More than one answer is possible)

638 participants out of 771 did not answer this question. Of the 133 who did: • 67 answered ‘yes, Art 12(1) has been applied (in connection with proceedings on divorce, legal separation, marriage annulment’ (50.38%); • 38 answered ‘yes, Art 12(3) has been applied (in connection with proceedings other than those on divorce, legal separation, marriage annulment’ (28.57%); • 35 had no opinion or did not know (26.32%); • 21 answered no (15.79%). Question no 9: (If the answer to the previous question was in the positive), has Art 12 been properly applied?

687 participants out of 771 did not answer this question. Of the 8447 who did: • 67 answered yes (79.76%); • 17 answered no (20.24%). Question no 10: (If the answer to the question no 8 was in the negative), which was the reason for the misapplication of the provision? (More than one answer is possible in case you experienced different results in different cases)

47 It must be pointed out that 105 participants answered yes to question no 8, and the same should have been the number of participants answering this question, instead there were only 84.

The Outcomes of the Online Questionnaire  569 735 participants out of 771 did not answer this question. Of the 3648 who did: • 16 answered ‘the expressed acceptance of the jurisdiction was not determined by the positive acknowledgement of an agreement between the parties’ (44.44%); • 15 answered ‘the provision was not applied in its entirety’ (41.67%); • 10 answered ‘the unequivocal acceptance of the jurisdiction was inferred from the failure of a party to appear before the court’ (27.78%); • 3 answered ‘other’ (8.33%). When asked to specify: ○ 1 participant underlined that the condition regarding the child’s best interest is not assessed very often; ○ 1 participant generally underlined a scarce knowledge of EU legislation of domestic courts; ○ 1 last participant (presumably from the Czech Republic, given the reference to Czech courts) also generally underlined that the conditions of Art 12(1) are not dealt with. Question no 11: In parental responsibility proceedings, Art 15 of Regulation No 2201/2003 regulates the transfer of jurisdiction whenever the judicial authority of a different Member State appears to be more appropriate to adjudicate the case (forum conveniens). Based on your knowledge/experience, since the Regulation became applicable (on 1 March 2005) how often has this rule been referred to and applied in practical cases?

641 participants out of 771 did not answer this question. Of the 130 who did: • 70 answered ‘seldom (1–5 cases)’ (53.85%); • 38 had no opinion or did not know (29.23%); • 22 answered ‘often (more than 5 cases)’ (16.92%). Question no 12: If you have any experience on cases of transfer of jurisdiction, has the rule in Art 15(6), which grants courts the possibility to cooperate either directly or through central authorities, been applied? (e.g. exchanging or requesting information)

677 participants out of 771 did not answer this question. Of the 94 who did: • 70 answered no (74.47%); • 24 answered yes (25.53%). When asked to specify: ○ 9 participants stressed that domestic judges cooperate directly mainly through e-mails or liaison judges/offices or international judicial networks (1 participant also referred to phone calls); ○ 5 participants indicated that the cooperation takes place mainly through Central Authorities, even though a sixth one, a judge from Spain, underlined that this means of cooperation proved to be ineffective; ○ 1 participant referred to a ‘rogatory commission’. 48 It must be pointed out that the participants who answered ‘no’ to question no 8 were 21, and the same should have been the number of participants answering this question, instead there were 36.

570  Caterina Fratea and Diletta Danieli Question no 13: Do you think a provision similar to Art 15 would prove helpful if extended to matrimonial matters? (e.g. in the case of same-sex spouses married abroad but citizens of and habitually resident in a Member State under whose law same-sex marriage is not recognised)

642 participants out of 771 did not answer this question. Of the 129 who did: • 65 answered yes (50.39%). When asked to amplify: ○ 6 participants expressed that it could be helpful in the case like that indicated in the question; ○ 1 participant argued that a choice-of-court provision would prove to be more helpful; ○ despite giving a positive answer, 1 participant is sceptical about the fact that a transfer of jurisdiction in a case like the one exemplified in the question could imply a sort of recognition of same-sex marriages in Member States whose legal order does not recognise them and, rather than a transfer of jurisdiction, opts for a prorogation of jurisdiction; ○ 1 participant would rather call for an amendment of Art 7 of Brussels IIa Regulation so that Member States courts can revert to their national law should the foreign court not hear the case even though it had jurisdiction; ○ 1 participant stated that a such a provision would match with Art 10 of Rome III Regulation. • 36 had no opinion or did not know (27.91%); • 28 answered no (21.71%). Question no 14: Based on your knowledge/experience, since Regulation No 4/2009 became applicable (on 18 June 2011) have the alternative grounds of jurisdiction provided at Art 3 of such Regulation been properly referred to and applied in practice? (More than one answer is possible in case you experienced different results in different cases)

642 participants out of 771 did not answer this question. Of the 129 who did: • 47 answered ‘yes, and the ground of jurisdiction was expressly referred to’ (36.43%); • 41 answered ‘yes, but no reference was made to the specific ground of jurisdiction (either Art 3(a), (b), (c) or (d))’ (31.78%); • 41 had no opinion or did not know (31.78%); • 14 answered no (10.85%). Question no 15: (If the answer to the previous question was in the positive, and the ground of jurisdiction was expressly referred to), which ground of jurisdiction was referred to? (More than one answer is possible in case you experienced different results in different cases)

715 participants out of 771 did not answer this question. Of the 56 who did: • 41 answered ‘3(a) (habitual residence of the defendant)’ (73.21%); • 31 answered ‘3(b) (habitual residence of the creditor)’ (55.36%); • 23 answered ‘3(d) (maintenance application ancillary to a proceeding concerning the parental responsibility)’ (41.07%); • 18 answered ‘3(c) (maintenance application ancillary to a proceeding concerning the status of a person)’ (32.14%).

The Outcomes of the Online Questionnaire  571 Question no 16: In its judgment of 16 July 2015 (case C-184/14), the Court of Justice of the European Union clarified the interplay between Art 3(c) and Art 3(d) of Regulation No 4/2009. In particular, it held that when a court of a Member State is seised in a case involving the separation or dissolution of a marital link between the parents of a minor child, and at the same time a court of another Member State is seised in a case regarding parental responsibility relating to that same child, the application relating to maintenance concerning that child is considered ancillary only to the proceedings concerning parental responsibility within the meaning of Art 3(d). Based on your knowledge/experience, have national courts been so far compliant with the CJEU ruling on the interplay between Art 3(c) and Art 3(d)?

642 participants out of 771 did not answer this question. Of the 129 who did: • • • •

71 had no opinion or did not know (55.04%); 29 answered yes (22.48%); 20 answered no (15.50%); 9 answered ‘various outcomes’ (6.98%). When asked to amplify: ○ 2 participants argued that this case was the only one where such a question arose and that the domestic courts have not been called to deal with the interplay of such provisions; ○ 1 participant generally argued that Spanish courts are not aware of the CJEU case law. Question no 17: In maintenance proceedings, Art 7 of Regulation No 4/2009 establishes the rule on forum necessitatis according to which, should the courts of any Member State not have jurisdiction pursuant to the Regulation, the courts of a Member State may, on an exceptional basis, hear the case if the proceeding cannot reasonably be brought or conducted or would be impossible in a third State with which the dispute is closely connected. Based on your knowledge/experience, since the Regulation became applicable (on 18 June 2011) how often has this rule been referred to and applied in practical cases?

644 participants out of 771 did not answer this question. Of the 127 who did: • 72 had no opinion or did not know (56.69%); • 52 answered ‘seldom (1–5 cases)’ (40.94%); • 3 answered ‘often (more than 5 cases)’ (2.36%). Question no 18: Based on your knowledge/experience, do you think that a provision regulating forum necessitatis in the context of Regulation No 2201/2003 would prove helpful to ensure that a court of a Member State has jurisdiction over proceedings that cannot reasonably be brought or conducted in a third state?

642 participants out of 771 did not answer this question. Of the 129 who did: • 63 answered yes (48.84%). When asked to amplify: ○ 4 participants argued that this could be better than current Art 7 of Brussels IIa Regulation, which could be replaced because maintaining both could ingenerate confusion about their interplay or hierarchy; ○ 1 participant argued that such a provision should be used as a last resort following the application of the residual jurisdiction provision of Art 7 of Brussels IIa Regulation;

572  Caterina Fratea and Diletta Danieli ○ 1 participant suggested that a forum necessitatis could be used for same-sex marriages; ○ 1 participant suggested that a forum necessitatis could be used should the third state be hit by sudden events. • 33 answered no (25.58%); • 33 had no opinion or did not know (25.58%). Question no 19: Do you consider the measures provided by Regulation No 4/2009 sufficient to ensure the effective recovery of maintenance claims in cross-border situations and eventually facilitate the free movement of persons within the European Union as stated by Recital 45 of the Regulation?

645 participants out of 771 did not answer this question. Of the 126 who did: • 66 answered yes (52.38%); • 45 had no opinion or did not know (35.71%); • 15 answered no (11.90%). When asked to amplify, there were reasons on both sides: • according to 8 participants the Maintenance Regulation is a good instrument which made the recovery of claims easier and more effective, even though some criticism can be raised in relation to recognition and enforcement; • 1 participant argued that the recognition model of Arts 17–22 should be extended to other EU regulations on family law; • according to 2 participants, the Regulation also did not significantly improve the situation in comparison to the previous international conventions either because its effectiveness mostly depends on the functioning of the Central Authorities, which in many cases cannot count on enough resources and staff. Question no 20: In family law proceedings, based on your knowledge/experience, how has the actual habitual residence of a party (spouses, children) been ascertained in practice? (More than one answer is possible)

644 participants out of 771 did not answer this question. Of the 127 who did: • 106 answered ‘by relying on the evidence exhibited by the parties (e.g. certificates, documents, reports, etc.)’ (83.46%); • 46 answered ‘by carrying out an autonomous assessment, including requiring the parties to exhibit additional evidence’ (36.22%); • 15 answered that ‘habitual residence has not been properly ascertained’ (11.81%); • 11 answered ‘by assessing other elements’ (8.66%). When asked to amplify 2 participants indicated: declarations of the parties if they agree on it; statement of parents, wishes of children, criteria contained in both national and CJEU case law such as language spoken, working place, school environment, sport activities; the conclusions of other courts concerning the same person. Question no 21: Based on your knowledge/experience, would the notion of habitual residence require a specific interpretation under Regulation No 650/2012? (e.g. where an elderly person

The Outcomes of the Online Questionnaire  573 was moved by potential heirs to another country for the sole purpose of establishing jurisdiction and applicable law) (More than one answer is possible)

641 participants out of 771 did not answer this question. Of the 130 who did: • 65 answered ‘yes, a voluntary element in establishing the habitual residence before the death should be taken into account’ (50%); • 59 answered ‘yes, the amount of time spent in the given country before the death should be taken into account’ (45.38%); • 27 answered ‘yes, other elements should be taken into account (different elements from those mentioned above)’ (20.77%). When asked to amplify 10 participants indicated: social and family relations, nationality of the person, duration and reasons of the residence, reasons for the change of residence, location of assets, intention and voluntary elements of the deceased, all the circumstances of the case (moreover, Of these 10, 1 participant referred to the 2000 Hague Convention on the Protection of Adults); • 27 had no opinion or did not know (20.77%); • 12 answered no (9.23%). Question no 22: Regarding lis alibi pendens, based on your knowledge/experience, how has the issue of coordination of proceedings on the same (or connected) matter pending before a non-Member State court been assessed and ruled upon in practice (lacking any express provision in the EU Regulations on family matters)? (More than one answer is possible in case you experienced different results in different cases)

644 participants out of 771 did not answer this question. Of the 127 who did: • 68 had no opinion or did not know (53.54%); • 32 answered that ‘the Member State court has referred to and applied its domestic private international law rules on lis alibi pendens’ (25.20%); • 26 answered that ‘the Member State court has deemed the application of the grounds of jurisdiction provided for in the EU regulations mandatory, and it has not declined its jurisdiction whenever it had jurisdiction on the matter pursuant to the relevant rules of said regulations’ (20.47%); • 12 answered that ‘the Member State court has referred to and applied EU rules on lis alibi pendens also in relation to third-country proceedings (so called ‘reflexive effect’)’ (9.45%); • 3 answered ‘other’ (2.36%), even though 1 of these 3 participants could have been included in the second indent. Question no 23: Regarding choice of court agreements under Art 4 of Regulation No 4/2009, based on your knowledge/experience, have the parties to maintenance proceedings ever agreed on the jurisdiction of a specific Member State/court?

658 participants out of 771 did not answer this question. Of the 113 who did: • 85 answered no (75.22%) • 28 answered yes (24.78%). When asked to amplify, 7 participants indicated that it happened by means of pre-marital or post-marital agreements or that the choice is made in the documents submitted by the parties during the proceedings.

574  Caterina Fratea and Diletta Danieli Question no 24: (If the answer to the previous question was ‘no’), could you indicate the reasons for that? (More than one answer is possible)

688 participants out of 771 did not answer this question. Of the 8349 who did: • 49 answered ‘difficulty in reaching an agreement between the parties to the proceedings’ (59.04%); • 39 answered ‘limited knowledge/awareness on behalf of the parties of the relevant EU rules’ (46.99%); • 33 answered ‘limited knowledge/awareness on behalf of the practitioners of the relevant EU rules’ (39.76%); • 17 answered ‘limited knowledge/awareness on behalf of the court of the relevant EU rules’ (20.48%); • 5 answered ‘other’ (6.02%). When asked to amplify, 1 participant indicated the limited scope of application of Art 4, which does not apply to maintenance obligations towards a child under the age of 18, and 1 referred to the rush to the court. Question no 25: Do you consider jurisdiction rules to create incentives for abusive litigation tactics under the current EU PIL framework in family law matters?

642 participants out of 771 did not answer this question. Of the 129 who did: • 50 answered yes (38.76%). When asked to explain, 13 participants indicated that the high number of alternative grounds of jurisdiction of Brussels IIa Regulation and the lis pendens rules are an incentive to forum shopping and forum running and favour the economically stronger party and the limited application of Rome III Regulation, which does not counterbalance the forum shopping made possible by Brussels IIa Regulations in family matters. • 43 answered no (33.33%); • 36 had no opinion or did not know (27.91%).

A.  Conclusions of the Section ‘Matters Related to Jurisdiction’ This section appears to be the one that registered the highest familiarity among the practitioners participating in the survey who, as general trends and shared opinions, underlined: • The need to establish a hierarchy among the grounds of jurisdiction in matrimonial matters in order to reduce the risk of forum-shopping. In fact, according to questions no 3 (which is the one that registered the highest response rate) and no 25, the present system is too claimant-friendly and creates incentives for abusive litigation (questions nos 3, 4 and 25).

49 It must be pointed out that the participants who answered ‘no’ to question no 23 were 85, and the same should have been the number of participants that should have answered this question, whereas they were 83.

The Outcomes of the Online Questionnaire  575 • A higher degree of uncertainty (also in the light of the number of no-opinion answers) arises within child abduction proceedings rather than matrimonial matters, especially in relation to the interplay between the Brussels IIa Regulation and the 1980 Hague Abduction Convention. In general, practitioners appear to be less familiar with the provisions of the 1980 Hague Abduction Convention, given the more limited number of cases they had the chance to deal with (questions nos 6–7). • Positive feedback is registered in relation to the prorogation of jurisdiction rule laid down in Article 12 of the Brussels IIa Regulation, both taking into account the number of cases dealt with by the participants and its proper application given by national courts. In the limited number of cases of misapplication of the provision (very few, given that question no 10 is the one that registered least answers), the main cause had to be found in the interpretation of the unequivocal acceptance of the parties to the prorogation of jurisdiction (questions nos 8–10). • Very few cases were registered on the transfer of jurisdiction of Article 15 and it was pointed out that the cooperation mechanisms between courts laid down in Article 15(6) were rarely applied. Besides the vast majority of the participants who answered question no 13 agreed on the possibility of extending Article 15 to matrimonial matters for the case of same-sex spouses married abroad but citizens of and habitually resident in a Member State under whose law same-sex marriage is not recognised (questions nos 11–13). • Positive feedback is registered also in relation to the effectiveness of recovery descending from the Maintenance Regulation and in relation to proper application of its grounds of jurisdiction, with the most referred to being Article 3(a) (questions nos 14–15 and 19). • CJEU Case C-184/14 A v B50 and the forum necessitatis of Article 7 appear to have a very limited practical relevance, even though some participants said that a provision similar to Article 7 of the Maintenance Regulation could also be introduced in the Brussels IIa Regulation, replacing the residual jurisdiction rule (Article 7 of the Brussels IIa Regulation) (questions nos 16–18). • As to the way of ascertaining the habitual residence, the most frequent way is the evidence exhibited by the parties directly or upon request of the judge. Besides, with specific reference to the Succession Regulation, particular consideration should be paid to the intention of the deceased (question no 21). • As to the lis alibi pendens with third states, many participants did not have a specific opinion on the matter. The majority of those who answered said that in these cases domestic courts either applied their national Private International Law rules to determine the jurisdiction or directly retained their jurisdiction on the basis of the Brussels IIa Regulation without considering the proceedings pending in the nonMember State (question no 22). • Very limited recourse is made to choice-of-court agreements mainly due to the limited knowledge of this legal tool and the difficulty of reaching an agreement between separating/divorcing partners (questions nos 23–24).

50 Case

C-184/14 A v B [2015] ECLI:EU:C:2015:479.

576  Caterina Fratea and Diletta Danieli

III.  Matters Related to Applicable Law This section was made up of three questions and their responses are reported below. Question no 26: Based on your knowledge/experience, since Regulation No 1259/2010 became applicable (on 21 June 2012) how often have choice-of-law agreements been reached during the course of the proceedings pursuant to Art 5(3) of the Regulation?

651 participants out of 771 did not answer this question. Of the 120 who did: • 65 had no opinion or did not know (54.17%); • 37 answered ‘seldom (1–5 cases)’ (30.83%); • 18 answered ‘often (more than 5 cases)’ (15%). When asked how the parties were encouraged to reach the choice-of-law agreement in these cases (eg, voluntarily, upon the judge’s request, etc): • 18 participants indicated that the agreement was made during the proceedings voluntarily or upon the judge’s request almost in equal part; • 2 participants indicated that the agreement was made by means of pre-nuptial agreements; • 1 participant indicated that it also occurred upon the lawyer’s encouragement and through family mediation. Question no 27: In family law proceedings, based on your knowledge/experience, how has the court ascertained the substantial provisions of the foreign law (especially those of third states) applicable in the specific case? (More than one answer is possible)

651 participants out of 771 did not answer this question. Of the 120 who did: • 67 answered that ‘the specific provisions of the foreign law have been mentioned in the parties’ court documents’ (55.83%); • 56 answered ‘by other means’ (46.67%). When asked to amplify: ○ 8 indicated by means of databases/research on the Internet; ○ 5 indicated by means of a legal expert/counsellor of the relevant country; ○ 2 indicated the legal literature; ○ 1 referred to the translations of the foreign law exhibited by the parties; ○ with specific reference to the English legal system, 1 indicated the support of expert evidence while another one specified that English courts dot not generally apply the foreign law. • 27 answered ‘by means of the European Judicial Network’ (22.50%); • 26 had no opinion or did not know (21.67%); • 20 answered ‘by other means of judicial cooperation’ (16.67%). Question no 28: In family law proceedings, based on your knowledge/experience, has the application of a foreign law been refused by the competent court? (More than one answer is possible)

The Outcomes of the Online Questionnaire  577 650 participants out of 771 did not answer this question. Of the 121 who did: • • • • •

50 answered no (41.32%); 36 had no opinion or did not know (29.75%); 23 answered ‘yes, on the ground of the public policy exception’ (19.01%); 13 answered ‘yes, on the ground of an overriding mandatory rule’ (10.74%); 10 answered ‘yes, other ground(s)’ (8.26%).

When asked to amplify, participants who answered yes indicated that: • unless EU regulations establish otherwise, English courts apply the lex fori (4); • the refusal to apply a foreign law can derive from the lack of evidence by the parties or the fact that the law could not be established (6); • the foreign law is discriminatory (eg sharia) (4).

A.  Conclusions of the Section ‘Matters Related to Applicable Law’ From the collected data, conclusions may be summarised as follows: • Article 5 of Rome III Regulation has a very limited impact on choice-of-law agreements (question no 26). • As to the mechanisms for ascertaining the foreign law, half of the participants who answered referred to the documents of the parties and the other half to other means (mainly databases/Internet and legal experts) (question no 27). • Normally the application of the foreign law is not refused by the competent court, even though when it happens it is mainly due to the public policy exception (question no 28).

IV.  Matters Related to Recognition and Enforcement This section was made up of 12 questions and their responses are reported below. Question no 29: Based on your knowledge/experience, since Regulation No 2201/2003 became applicable (on 1 March 2005) how often have you encountered cases regarding recognition and enforcement of a foreign decision?

657 participants out of 771 did not answer this question. Of the 114 who did: • 53 answered ‘often (more than 5 cases)’ (46.49%); • 37 answered ‘seldom (1–5 cases)’ (32.46%); • 24 had no opinion or did not know (21.05%). Question no 30: Based on your knowledge/experience, which ground of non-recognition provided in Art 22 of Regulation No 2201/2003 (decisions on matrimonial matters) has been more frequently referred to and applied in practice? (More than one answer is possible)

578  Caterina Fratea and Diletta Danieli 659 participants out of 771 did not answer this question. Of the 112 who did: • • • •

56 had no opinion or did not know (50%); 32 answered ‘22(b) (service of documents)’ (28.57%); 21 answered ‘22(a) (public policy)’ (18.75%); 15 answered ‘22(c) (irreconcilability with a judgment rendered in the requested Member State)’ (13.39%); • 7 answered ‘22(d) (irreconcilability with a judgment rendered in another Member State or third state)’ (6.25%). Question no 31: Based on your knowledge/experience, do you think that the public policy exception has been applied too extensively in practical cases, thus jeopardising mutual trust among Member States?

657 participants out of 771 did not answer this question. Of the 114 who did: • 62 answered no (54.39%); • 40 had no opinion or did not know (35.09%); • 12 answered yes (10.53%). When asked to amplify: • some participants who answered ‘yes’ specified that a broad interpretation of the public policy exemption takes place especially when children are involved (2); • some participants who answered ‘no’ specified that: it is becoming increasingly important to refer to the ‘international notion of public policy’ (1) thus allowing a broad recognition/enforcement of foreign decisions; in practice Art 22 plays a very limited role (1); the public policy exception is applied in a strict way (2). Question no 32: Based on your knowledge/experience, which ground of non-recognition provided in Art 23 of Regulation No 2201/2003 (decisions on parental responsibility) has been more frequently referred to and applied in practice? (More than one answer is possible)

659 participants out of 771 did not answer this question. Of the 112 who did: • • • • • •

46 had no opinion or did not know (41.07%); 45 answered ‘23(b) (lack of hearing of the child)’ (40.18%); 22 answered ‘23(c) (service of documents)’ (19.64%); 19 answered ‘23(a) (public policy)’ (16.96%); 13 answered ‘23(d) (lack of hearing of the parental responsibility holder)’ (11.61%); 13 answered ‘23(e) (irreconcilability with a judgment rendered in the requested Member State)’ (11.61%); • 5 answered ‘23(f) (irreconcilability with a judgment rendered in another Member State or third State)’ (4.46%); • 2 answered ‘23(g) (procedure provided for in Art 56 of the Regulation)’ (1.79%).

The Outcomes of the Online Questionnaire  579 Question no 33: With regard to the hearing of the child, do you think that a higher degree of harmonisation at the EU level would prove useful in order to minimise the recourse to the ground of non-recognition provided in Art 23(b)?

657 participants out of 771 did not answer this question. Of the 114 who did: • 73 answered yes (64.04%); • 26 had no opinion or did not know (22.81%); • 15 answered no (13.16%). When asked to amplify: • some participants who answered ‘yes’ specified that: in order to increase mutual trust and facilitate the circulation of decisions among Member States, it is necessary to define common standards on the minimum child’s age for the hearing, the exceptions from the hearing, and on the hearing procedure in order to guarantee the protection of the child (14); the hearing should be mandatory, at least for children 10 years old and older (4); it is sensible to set common standards provided that the judge is given the possibility to evaluate the specific circumstances of the single case at hand (1); when children are bilingual, experts of both countries should participate in the hearing (1); • some participants who answered ‘no’ specified that: it is not realistic to achieve a higher standard of harmonisation on this aspect (1); the reference to the EU Charter of Nice of Fundamental Rights and the UN Convention on the Rights of the Child is sufficient as the Recast proposal indeed specifies (1). Question no 34: Based on your knowledge/experience, since Regulation No 2201/2003 became applicable (on 1 March 2005) how often has enforcement been granted in presence of a certified judgment issued according to Art 41 of the Regulation?

658 participants out of 771 did not answer this question. Of the 113 who did: • 57 had no opinion or did not know (50.44%); • 35 answered ‘seldom (1–5 cases)’ (30.97%); • 21 answered ‘often (more than 5 cases)’ (18.58%). Question no 35: Based on your knowledge/experience, was the certificate properly filled out using the standard form provided in Annex III of Regulation No 2201/2003? (More than one answer is possible)

691 participants out of 771 did not answer this question. Of the 80 who did: • 55 answered yes (68.75%); • 16 answered ‘no, the certificate was incomplete’ (20%); • 7 answered ‘no, the elements contained in the certificate did not correspond to the contents of the judgment’ (8.75%); • 7 answered ‘no, other reasons’ (8.75%). When asked to amplify, these 7 participants actually underlined they did not encounter cases regarding the subject matter of the question.

580  Caterina Fratea and Diletta Danieli Question no 36: Based on your knowledge/experience, since Regulation No 2201/2003 became applicable (on 1 March 2005) how often has the enforcement been granted in presence of a certified judgment issued according to its Art 42?

661 participants out of 771 did not answer this question. Of the 110 who did: • 49 had no opinion or did not know (44.55%); • 39 answered ‘seldom (1–5 cases)’ (35.45%); • 22 answered ‘often (more than 5 cases)’ (20%). Question no 37: Based on your knowledge/experience, was the certificate properly filled out using the standard form provided in Annex IV of Regulation No 2201/2003? (More than one answer is possible)

690 participants out of 771 did not answer this question. Of the 81 who did: • 55 answered yes (67.90%); • 16 answered ‘no, the certificate was incomplete’ (19.75%); • 10 answered ‘no, the elements contained in the certificate did not correspond with the contents of the judgment’ (12.35%); • 8 answered ‘no, other reasons’ (9.88%). When asked to amplify, these 8 participants actually underlined they did not encounter cases regarding the subject matter of the question. Question no 38: Based on your knowledge/experience, since Regulation No 4/2009 became applicable (on 18 June 2011) how often have you encountered cases regarding recognition and enforcement of a foreign decision that falls within the scope of such Regulation?

661 participants out of 771 did not answer this question. Of the 110 who did: • 43 had no opinion or did not know (39.09%); • 42 answered ‘seldom (1–5 cases)’ (38.18%); • 25 answered ‘often (more than 5 cases)’ (22.73%). Question no 39: Based on your knowledge/experience, was the extract from the decision properly filled out using the standard forms provided in the Annexes of Regulation No 4/2009? (More than one answer is possible)

693 participants out of 771 did not answer this question. Of the 78 who did: • 51 answered yes (65.38%); • 19 answered ‘no, the extract was incomplete’ (24.36%); • 8 answered ‘no, the elements contained in the extract did not correspond to the contents of the judgment’ (10.26%); • 8 answered ‘no, other reasons’ (10.26%). When asked to amplify, 6 out of these 8 participants actually underlined that did not encountered cases regarding the subject matter question.

The Outcomes of the Online Questionnaire  581 Question no 40: Based on your knowledge/experience, which ground of non-recognition provided for in Art 24 of Regulation No 4/2009 has been more frequently referred to and applied in practical cases? (More than one answer is possible)

660 participants out of 771 did not answer this question. Of the 111 who did: • 64 had no opinion or did not know (57.66%); • 26 answered ‘24(b) (service of documents)’ (23.42%); • 20 answered ‘24(a) (public policy)’ (18.02%); • 15 answered ‘24(c) (irreconcilability with a judgment rendered in the requested Member State)’ (13.51%); • 6 answered ‘24(d) (irreconcilability with a judgment rendered in another Member State or third State)’ (5.41%).

A.  Conclusions of the Section ‘Matters Related to Recognition and Enforcement’ From the collected data, conclusions may be summarised as follows: • Half of the participants who answered this section encountered more than five cases of recognition/enforcement of a foreign decision. In matrimonial matters cases, those referred to grounds of non-recognition are mostly related to the service of documents and the public policy exception. In this regard, the public policy exception is generally considered not to have been applied too extensively. In parental responsibility cases the main category referred to ground of non-recognition is that related to the hearing of the child (questions nos 29–32). • As to the hearing of the child, there is a very large agreement on the need to create common standards in order to increase mutual trust among Member States (question no 33). • High levels of uncertainty are reported in relation to enforcing certified decisions issued according to Article 41 of the Brussels IIa Regulation, whose standard form, however, is generally deemed properly filled in by those who expressed to have come across practical cases. Less uncertainty is reported in relation to enforcement of certified decisions issued according to Article 42 of Brussels IIa Regulation, whose standard form is also generally deemed properly filled in (questions nos 34–37). • Not many cases of recognition/enforcement of decisions fall within the scope of application of the Maintenance Regulation, whose standard form, however, is generally deemed properly filled in by those who expressed to have come across practical cases. The most referred to grounds of non-recognition are those related to the service of documents and the public policy exception, even though there is in general a very limited awareness on these aspects (questions nos 38–40).

582  Caterina Fratea and Diletta Danieli

V.  Matters Related to Cooperation between Central Authorities This section was made up of two questions and their responses are reported below. Question no 41: Based on your knowledge/experience, have the cooperation instruments provided for in Regulation No 2201/2003 proven useful in practice?

658 participants out of 771 did not answer this question. Of the 113 who did: • 56 answered yes (49.56%). When asked to amplify, 2 participants underlined that the cooperation instruments proved to be useful in the contexts of child abduction and cross-border placement of children; • 32 had no opinion or did not know (28.32%); • 25 answered no (22.12%). Question no 42: Based on your knowledge/experience, have the cooperation instruments provided for in Regulation No 4/2009 proven useful in practice?

659 participants out of 771 did not answer this question. Of the 112 who did: • 49 answered yes (43.75%). When asked to amplify, 1 participant underlined that the cooperation instruments proved to be useful in recovering information about assets placed abroad; • 43 had no opinion or did not know (38.39%); • 20 answered no (17.86%).

A.  Conclusions of the Section ‘Matters Related to Cooperation between Central Authorities’ From the collected data, conclusions may be summarised as follows: • The cooperation instruments established in the Brussels IIa and Maintenance Regulations are considered by some participants to have a positive and useful impact in practice, while many of them said not have practical experience on the matter (questions nos 41–42).

VI.  Interrelations between EU Regulations and International Conventions This section was made up of one question and its responses are reported below. Question no 43: Based on your knowledge/experience, have you experienced any practical difficulty as to the interrelations between EU Regulations on family matters and relevant international Conventions? (More than one answer is possible)

The Outcomes of the Online Questionnaire  583 658 participants out of 771 did not answer this question. Of the 113 who did: • 43 answered ‘yes, I have experienced difficulties and I believe the interrelation should be more clearly regulated’ (38.05%); • 37 answered ‘no, I have not experienced any difficulties in this regard’ (32.74%); • 33 answered ‘yes, I have experienced difficulties regarding the respective scopes of application (temporal/material/personal/territorial)’ (29.20%); • 19 answered had no opinion or did not know (16.81%). When asked to amplify, participants who answered yes indicated the following main difficulties: • interplay between the Brussels IIa Regulation and 1996 Hague Convention (6); • different provisions between EU Regulations and international Conventions and the circumstance that a Member State can be party to a Regulation and not to a certain Convention, or vice versa (2); • interplay between the Brussels IIa Regulation and 1980 Hague Convention (1); • interplay between Regulation 4/2009 and other international instruments related to maintenance (1); • the absence of a codification of all the EU Regulations on family law (1).

A.  Conclusions of the Section ‘Interrelations between EU Regulations and International Conventions’ From the collected data, conclusions may be summarised as follows: • For the participants who answered to this section, difficulties arose in relation to the interplay between EU Regulation and other relevant international Conventions, especially between the Brussels IIa Regulations and 1980 Hague Abduction Convention and 1996 Hague Convention on the Protection of Children (question no 43).

VII.  Residual Application of Domestic Rules of Private International Law This section was made up of one question, and its responses are reported below. Question no 44: Based on your knowledge/experience, have the rules of Private International Law of your country been properly referred to and applied in cross-border cases? (More than one answer is possible)

660 participants out of 771 did not answer this question. Of the 111 who did: • 67 answered ‘yes, in the absence of any EU or international provision regulating the matter’ (60.36%);

584  Caterina Fratea and Diletta Danieli • 25 answered ‘no, they were incorrectly referred to and applied in addition to the relevant EU or international rule’ (22.52%); • 22 answered ‘no, they were erroneously given precedence over EU or international rules’ (19.82%); • 22 had no opinion or did not know (19.82%).

A.  Conclusions of the Section ‘Residual Application of Domestic Rules of Private International Law’ From the collected data, conclusions may be summarised as follows: • The majority of the participants agreed on the correct residual application of national Private International Law rules by domestic courts, even though there is no lack of participants who underlined a wrong precedence given to national rules over EU Regulations or a joint application of the two Private International Law sources (question no 44).

VIII.  Final Remarks Preliminarily, it is worth highlighting that, apart from the first two questions of the survey aimed at picturing the background of the participants, the vast majority of the 771 participants in the survey did not generally answer the other 42 questions specifically related to the analysis of EU Regulations on family law. In fact, going through all the questions it is possible to note the number of participants that actually decided to answer ranges from 36 (question no 10) to 140 (question no 3) out of 771, which means that many questions were skipped. Moreover, even when they decided to answer, often many participants indicated that they did not have an opinion or practical experience on the specific aspect addressed in the question. This can result from different reasons. Firstly, the few number of responses is linked to the matters addressed in the questionnaire in addition to limited knowledge, practical experience or awareness of the EU Regulations by legal practitioners; difficulties in their interpretation, application and in the interplay with other international Conventions; and an actual limited circulation of decisions between Member States. Secondly, comprehending and filling out of the questionnaire itself may give rise to difficulties. Perhaps some of the questions might have been perceived as too technical or too complex, or the structure of the question itself might have seemed too unfriendly to the users (eg, high number of questions; technicality of the alternatives; the fact that many questions were interrelated and therefore particular attention had to be paid to their sequence and to previous answers). However, it has to be stressed as well that the high degree of complexity reflects the complexity of the subject matter addressed by the questionnaire. In the light of the foregoing, some final conclusions and evaluations may be summarised as follows. Generally speaking, and taking into account the response rate

The Outcomes of the Online Questionnaire  585 to the questionnaire, EU Regulations on family law still represent legal tools that are scarcely known by legal practitioners and professionals. Among the different aspects addressed by the questionnaire, the provisions on jurisdiction contained in the relevant Regulations are the ones that registered the highest level of confidence among the participants, even because it appears to be clear how the habitual residence of the parties has to be ascertained in practice in relation to the different Regulations, also thanks to the related CJEU case law. The first section of the questionnaire was also the one that contained the highest number of questions because from both the national exchange seminars and the First Assessment Report it appeared that matters on jurisdiction were those mostly dealt with. Despite this, also in relation to this section there is room for a wider spreading of certain legal tools that are still only little used, such as the transfer of jurisdiction of Article 15 of the Brussels IIa Regulation and choice-of-courts agreements. As to the applicable law, instead, it appears that major attention must be paid in raising awareness on choice-of-law agreements, still rarely used in practice, and to the tools provided by the EU with a focus to ascertain the foreign law that has to be applied in a given case, such as the European Judicial Network. The need to increase the application of all these tools, that appear to be very limited in practice because of the different reasons underlined above, is intimately related to the purpose of ensuring the so-called effet utile of the EU Regulations, thus guaranteeing a truly effective circulation of persons (through the recognition of their status). From the answers given to the recognition and enforcement section it is possible to infer the limited circulation of decisions within the European judicial community since half of the participants declared not to have (or to have only seldomly) dealt with cases regarding these matters. This can perhaps be due to the fact that in only a few cases does the party who obtained a favourable decision actually need to have it recognised and enforced in a Member State other than the one whose authorities issued the decision itself. However, the limited circulation of decisions can also be due to a scarce knowledge of the relevant legal instruments among judges and legal practitioners and of how to correctly fill in the certificates and extracts provided in the annexes of the Regulations. With a view of improving the application of European instruments, particular focus on these aspects is needed in order to ensure the circulation of decisions across EU Member States. In addition, it must be stressed that the main grounds of non-recognition often invoked by applicants are those related to the service of documents and the public policy exception. As to the former, different procedural formalities existing among national legal orders may imply difficulties in recognition. Also, even though this has not been expressly mentioned by the participants, a limited use of the Service Regulation in Member States in terms of judicial and extrajudicial documents in civil or commercial matters might have encouraged recourse to this ground of non-recognition. With particular reference to the public policy exception, the outcomes of the questionnaire reveal the need for clarification of the notion of public policy and the need to establish common standards among Member States in order not to frustrate or prejudice the circulation of decisions. The public policy exception, in fact, is still too strongly linked to national legal systems. This is particularly true in relation to the proceedings that involve children. In this regard, the majority of the participants who answered the

586  Caterina Fratea and Diletta Danieli questionnaire agree that developing common practices on the hearing of the child is of the utmost importance to make it possible for a decision to overcome national borders. This had already emerged during the national exchange seminars as a crucial aspect regarding the recognition of judgments. In the light of the main problems encountered by the participants according to the outcomes of the present questionnaire and the above outlined considerations, the need to provide practitioners with the means to deal with the relevant EU and international legal instruments on family law, which is the main objective pursued by the present project, is increasingly strong. It is undisputed that, in order to identify the issues to be addressed, the dialogue between legal professionals coming from different countries is essential. The need to overcome the difficulties met by practitioners and to spread the knowledge and the use of the legal tools on family law provided by the EU Regulations are the reasons why the project ultimately aims at developing models/templates of practical means that may prove useful to better arrange cross-border disputes, such as uniform best practices and guidelines, that are the focus of Workstream 2. These outputs are all intended to increase the recourse to said Regulations that, despite being applicable for a certain number of years, still appears to be too limited or not properly made.

37 Internationally Shared Good Practices* ARANTXA GANDIA SELLENS, CÉLINE CAMARA, AMANDINE FAUCON ALONSO AND PHILIPPOS SIAPLAOURAS

I. Presentation Following the EUFam’s national seminars, that took place between July and December 2016, (respectively in Italy, Germany, Spain and Croatia), the Max Planck Institute Luxembourg for Procedural Law hosted the International Exchange Seminar of the EUFam’s Project in May 2017. The purpose of the event was the sharing of knowledge, experiences and views among judges, practitioners, academics, EU policy-makers and state officers, who are confronted with the EU Family Law Regulations (Brussels IIa, Rome III, Maintenance, Succession) in their daily practice, in order to collect internationally shared good practices. The seminar had 82 participants (42 academics, 13 judges, 18 lawyers, two state officers, four representatives of Central Authorities, one representative of the European Commission, one representative of the Hague Conference on Private International Law, one representative of the Project’s Academic Advisory Board) coming from 12 different countries (Belgium, Bulgaria, Croatia, Czech Republic, France, Germany, Greece, Italy, Luxembourg, the Netherlands, Spain and the United Kingdom). The discussion was structured in four panels, composed of experts in the field. Each panel was dedicated to one of the key difficulties witnessed in the development of the EUFam’s Project (this assessment has been based on results collected through the national seminar reports,1 EUFam’s database,2 the First Assessment Report3 and

* International Exchange Seminar, 11–12 May 2017. Disclaimer: This publication has been produced with the financial support of the Civil Justice Programme of the European Union. The contents of the publication are the sole responsibility of the Max Planck Institute Luxembourg, that hosted the seminar and drafted the report, and can in no way be taken to reflect the views of the European Commission. 1 Hereinafter, ‘national reports’. Available at www.eufams.unimi.it/category/research-outputs/. 2 Available at www.eufams.unimi.it/category/database/. 3 I Viarengo and FC Villata (eds), First Assessment Report on the case-law collected by the Research Consortium (EUFam’s Project, 2016) at www.eufams.unimi.it/wp-content/uploads/2017/01/EUFAMS-FirstAssessment-Report-of-the-collected-case-law.pdf.

588  Arantxa Gandia Sellens, et al the Report on the Outcomes of the Questionnaire4). Each panel started with a concise explanation by a researcher of the Max Planck Institute Luxembourg, followed by an intervention of a renowned expert who took up the problem and finally, the largest part of the time was allocated to a discussion, chaired by experienced professors, with participants who were invited to share their views, experiences and questions. In accordance with the Chatham House Rules, the names of the participants are not reported. The outcome of the fruitful debates that took place in the course of the seminar can be reported as described below.

II.  The Main Aspects Related to Brussels IIa Regulation and Rome III According to the Findings of the EUFam’s Project A.  Matrimonial Matters i.  Personal Scope of Application According to the results of EUFam’s national reports, the personal scope of application of Brussels IIa remains unclear. In the Regulation, when the grounds of Articles 3, 4 and 5 do not give jurisdiction to a Member State, the national laws are applicable; but only if no other Member State can be seised in accordance to the Regulation, as was stated by the CJEU in the Sundelind Lopez case.5 This left unsolved the following situation: one of the spouses has the nationality of a Member State and both spouses have habitual residence in a third country. Apparently, then it is unclear which courts have jurisdiction. In order to solve this problem, the Brussels IIter Proposal6 has now merged Articles 6 and 7, providing a sort of forum necessitatis rule (one interpretation of the doctrine, notably from one of the members of the EUFam’s Academic Advisory Board). However, according to the national reports, its wording is still confusing. The invited expert (a German academic) stressed how unfortunate it was that the Brussels IIter Proposal did not address matrimonial matters, as there is clearly a need for reform in this regard. Concerning the issue of the personal scope of application, in the opinion of the expert, the Brussels IIter Proposal did not address the problem. The Brussels IIter

4 MC Baruffi, C Fratea, D Danieli and C Peraro Report on the outcome of the online questionnaire (EUFam’s Project 2017) at www.eufams.unimi.it/wp-content/uploads/2017/06/EUFAMS-Report-Outcomes-OnlineQuestionnaire.pdf. 5 Case C-68/07 Kerstin Sundelind Lopez v Miguel Enrique Lopez Lizazo [2007] ECR I-10403, ECLI:EU:C:2007:740. 6 Please take into account that at the time the International Exchange Seminar was hosted (12 May 2017), the European Parliament Draft Report on the proposal for a Council regulation on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast), (2016/0190(CNS)) was not yet published. This is the reason why the participants only referred to the Commission’s Brussels IIter Proposal during the seminar.

Internationally Shared Good Practices  589 Proposal only merged Articles 6 and 7 of the Regulation in a single provision. However, residual jurisdiction is not that important regarding matrimonial matters because Article 3 of the Regulation grants a rather wide jurisdiction to the Member States. It is quite difficult to identify cases not covered by Article 3, which is why it is not that important as compared, for example, to the Succession Regulation where we have only one connecting factor for jurisdiction. The expert continued and suggested that the best solution would be a two-fold approach. On the one side, the need for harmonisation of the residual jurisdiction exists (Article 7 of the 2006 Commission’s Brussels IIter Proposal would be a good starting point,7 which provided for residual jurisdiction in two cases: if one of the spouses has the nationality of a Member State; and if one of the spouses had his/her residence during the last three years within a Member State). One possible and related idea here is to use the five-year period contained in the Succession Regulation in order to have consistency. On the other side, a harmonised forum necessitatis would be advisable, following the examples of Article 7 of the Maintenance Regulation, Article 11 of the Succession Regulation or Article 11 of both new Regulations on Matrimonial Property Regimes and Property Consequences of Registered Partnerships. During the debate, a German academic pointed out the incoherence of having the rule of forum necessitatis in some instruments and not in others. Jurisdiction of necessity has a sound basis in human rights. The lack of this rule creates a general dissatisfaction with the instruments. The representative of the European Commission described the need to base the new legislative proposals on data, and explained that when the draft of the Brussels IIter Proposal was being discussed there was no data available for matrimonial matters. However, the Central Authorities provided some statistics regarding parental responsibility from the data they had collected. Therefore, those statistics helped justify the need of changes in the field of parental responsibility and child abduction. Regarding Articles 6 and 7 of Brussels IIa, the representative of the European Commission indicated that the problem in practice is that the relationship between these two provisions is not clear. One article establishes a very clear protective rule that also exists in Brussels Ia Regulation: the nationals or habitual residents in a Member State may only be sued before the courts of other Member States under the rules set out in the Regulation. The other article provides the possibility to use the national rules on residual jurisdiction, but only in those situations when they are needed, because they do not fall under the connections foreseen in the articles of the Regulation. The aim of the Commission is to present a clearer text of these two articles. 7 Proposal for a Council Regulation amending Regulation (EC) No 2201/2003 as regards jurisdiction and introducing rules concerning applicable law in matrimonial matters [2006] (COM(2006) 399 final). According to this instrument, Art 7 was replaced by the following: ‘Article 7. Residual jurisdiction. Where none of the spouses is habitually resident in the territory of a Member State and do not have a common nationality of a Member State, or, in the case of the United Kingdom and Ireland do not have their ‘domicile’ within the territory of one of the latter Member States, the courts of a Member State are competent by virtue of the fact that: 5. the spouses had their common previous habitual residence in the territory of that Member State for at least three years; or 6. one of the spouses has the nationality of that Member State, or, in the case of United Kingdom and Ireland, has his or her ‘domicile’ in the territory of one of the latter Member States.’

590  Arantxa Gandia Sellens, et al

ii.  Material Scope of Application Regarding the material scope of application, there might be a need for clarifying the term ‘marriage’. The EUFam’s national reports focused on two concepts that might create doubts: registered partnerships and same-sex marriages. In this vein, it is also worth analysing the need to regulate the recognition of private divorces at the European level, especially in light of the last reform of the French law on divorce (Loi no. 2016-1547), allowing for a sort of private divorce that recently triggered a formal complaint before the European Commission against France.8 The invited expert (a German academic) pointed out that political reasons due to the sensitive nature of these matters, and the unanimity requirement (under Article 81(3) TFEU), might be behind the lack of reforms. The expert reflected on the impact of this provision in the field and suggested its abolition in the future as well as to, at least, open the door to the mechanism of enhanced cooperation if a majority of Member States are willing to broaden the material scope of application of Brussels IIa. The ideal situation, according to the invited expert, would be that same-sex marriages and registered partnerships would be included within the new Brussels IIa Regulation. If so, the question would be whether different jurisdictional provisions are necessary for these kinds of relationship. In that case, a careful assessment of Article 3 of Brussels IIa Regulation would be advisable. It would also be useful to add an additional basis for jurisdiction in the Member State where the registered partnership was registered, following the example of the Regulation on the Property Consequences of Registered Partnerships. And the same would apply to same-sex marriages, in order to allow those couples to have at least one forum for dissolving their marriage if they concluded their same-sex marriage in the EU. However, the so-called alternative jurisdiction rule introduced in the Matrimonial Property Regimes Regulation and Regulation on the Property Consequences of Registered Partnerships should be avoided. As to private divorces (like the new French, Spanish, Italian and possible Dutch approaches to divorce), maybe the European Commission has planned here a kind of hidden reform because the term ‘court’ is replaced by ‘authority’. It seems that at least private divorces, where an authority is involved in the registration of the divorce (for example, a civil status officer), could be covered by the new Regulation. The pending decision of the CJEU in Case C-372/16 Sahyouni9 will hopefully shed some light on how to deal with those private divorces. The comments from the audience varied. As for the topic of same-sex marriages, a Spanish academic referred to information about a relevant request for a preliminary ruling before the CJEU, now pending (Case C-673/16 Coman and Others).10 This case is connected to the free movement of EU citizens that are married to a third-state national. If this third-state national is a same-sex partner and the marriage was validly contracted in a different country from the state

8 More information on this issue can be found here: conflictoflaws.net/2017/complaint-against-france-fora-violation-of-several-obligations-arising-from-the-rome-iii-and-brussels-iibis-regulations/. 9 Case C-372/16 Soha Sahyouni v Raja Mamisch [2017] ECLI:EU:C:2017:988. 10 Case C-673/16 Relu Adrian Coman and Others v Inspectoratul General pentru Imigrări and Ministerul Afacerilor Interne [2018] ECLI:EU:C:2018:385.

Internationally Shared Good Practices  591 of recognition, and the referring court invokes the Charter,11 it will be difficult for the CJEU to avoid ruling against the recognition of the marriage for Private International Law purposes. Regarding the issue of private divorces, an Italian academic shared the view that a clarification on this point would be really useful and not necessarily politically engaging if it is made in the form of, for example, a recital clarifying this in the preamble of Brussels IIa, leaving things as they are as far as the grounds of jurisdiction are concerned. He continued to point out that the distinction here is not simply whether an authority is involved or not, because an authority is almost inevitably and systematically involved. The issue concerns what exactly the authority is for. On the one hand, there are situations where the involved authority is limited to receiving declaration statements from the spouses. If the authority does nothing more than that, this would be a purely private divorce scenario where no issue of jurisdiction arises, because it is like a contract made before a notary. On the other hand, if the authority involved carries out some assessment or some actual evaluation which results in a decision, then the issue of jurisdiction arises and we need rules, such as the rules of Brussels IIa Regulation to regulate the circulation of such decision. However, in the first scenario (the purely private one), jurisdiction is simply not an issue. If there is a clarification to this effect in the preamble, domestic legislators would be enabled to decide whether their reforms in this field fit in a purely private scenario or in a somehow public scenario. Another Italian academic stated that in private divorces there might be an interest to register the divorce in another Member State (for example, in the Member State where one of the spouses is a national). Therefore, it is necessary to provide for a choice of forum, but without the requirement of residence, because there is already the joint request, which is a choice of forum to a certain extent. A German academic commented on this issue, pointing out that a forum for registering divorce is quite different from a forum for judicial proceedings on divorce or separation. Therefore, the whole catalogue of grounds of jurisdiction needs to be rethought. The representative of the European Commission suggested dealing with this new trend of private divorces by applying Article 55 of the Brussels IIter Proposal, for the time being. This provision relates to authentic instruments and agreements and not only provides for enforcement, but also for recognition. She also explained that the purpose of substituting the term ‘court’ by ‘authority’ is to align it with the wording used in the 1996 Hague Convention on the Protection of Children. However, some problems have been identified, for example, regarding lis pendens situations, which are uncommon among administrative authorities. Therefore, this change will probably be reversed. On this topic, the invited expert (a German academic) added that a foreseeable problem in the future is that it will be very difficult to distinguish different forms of divorce. For example, there is no difference between a Spanish court issuing a divorce on demand and an Italian civil status officer just receiving the declaration that a couple wants to be divorced. Both authorities decide nothing in substance, they take

11 Arts

7, 9, 21 and 45 of the Charter of Fundamental Rights of the European Union [2000] OJ C 346.

592  Arantxa Gandia Sellens, et al a declaration. Therefore, there is no reason why the Spanish court should be bound by Article 3 Brussels IIa whereas the Italian civil status officer should not. Afterwards, a Spanish notary intervened and shared his concerns about the public interest at stake in private divorces. That public interest is the link between the spouses. He clarified that in Spain the divorce before a notary is not considered a private divorce, because the notary exercises judicial functions. In this line, the Spanish notaries have to assess if they have jurisdiction. There is not a free choice of notary in this matter, as it is the case in any other action. Therefore, in a divorce with international elements, the notaries have to check if they have jurisdiction according to the Brussels IIa Regulation. He suggests introducing in the Regulation an explanation of the concept of authentic instrument and authorities, which would help to bring some certainty to this area.

iii.  Alternative/Hierarchical Grounds of Jurisdiction and Choice-of-Court Another topic suggested for discussion was the alternative or hierarchical functioning of the grounds of jurisdiction. Traditionally, the doctrinal debate has focused on the choice between alternative grounds of jurisdiction (meaning that the plaintiff can seise any court among those meeting the requisites for jurisdiction) and hierarchical grounds of jurisdiction (this would be to some extent the Brussels Ia approach, meaning that the jurisdiction will be assumed respecting the order of precedence). The Regulation in its current version and the Brussels IIter Proposal follow the option of the alternative grounds of jurisdiction. Here the question would be whether this is the most appropriate approach. According to the responses stated in the EUFam’s Report on the Outcomes of the Questionnaire, the majority of the answers favoured the option of the hierarchical grounds of jurisdiction. The possibility of introducing a rule allowing the choice-of-court option in matrimonial matters is also linked to this topic. Concerning the grounds of jurisdiction, the invited expert (a German academic) agreed on establishing some degree of hierarchy within Article 3 of Brussels IIa in order to prevent a rush to the courts. However, this problem will be balanced by Article 5 of the Matrimonial Property Regimes Regulation, as the spouses’ agreement is required if the court seised to rule on an application for divorce, legal separation or marriage annulment pursuant to the exorbitant rules of Brussels IIa and shall have jurisdiction to rule too on matters of the matrimonial property regime arising in connection with that application. In addition, Brexit will also balance the problem, as Article 3 of Brussels IIa will not be used anymore to seise a British court. Regarding the possibility of choice-of-court agreements, according to the expert, it should exist. As the possibility of choosing the applicable law already exists, it should be possible to simultaneously choose the forum. Afterwards, a German academic from the audience shared his opinion in favour of abandoning the vast catalogue of heads of jurisdiction laid down at Article 3 of Brussels IIa. However, the option of strict hierarchy should also be discarded, as it would mean that there would be only one possible forum for divorce, and that is a too narrow an approach. As a possible solution, he suggested to keep the option of choosing the courts of the state of the couple’s nationality, as there could be the possibility that the couple still kept links to that state and they did not integrate themselves well in the state of current habitual residence.

Internationally Shared Good Practices  593 An Italian academic said that she was very much in favour of the system of alternative grounds of jurisdiction, and that they should be enlarged, especially for the cases of couples with the nationality of a Member State, but habitual residence in a third state. They should have the possibility to seise a court in the EU. This situation will become more common should the United Kingdom leave the EU as a result of Brexit. Another remark from a German academic highlighted the link between limiting the alternative grounds of jurisdiction and the choice of forum. The more limited the choice, the more need there will be for a choice of forum. Therefore, this is something that should be assessed together, and not separately. A German lawyer pointed out the possibility of choice of law under the Rome III Regulation and said that there should exist, accordingly, the possibility of choice of court.

iv.  Consolidation of Proceedings In Family Law disputes, many questions may arise concerning the same parties: matrimonial matters, parental responsibility, maintenance, etc. Currently, it may be that a single court is competent to decide on these matters because the different instruments partially use similar connecting factors. However, there is no guarantee that only one court is competent. The parties may seise different courts for different aspects of the same dispute. Another related point is the need for introducing party autonomy as one of the possible solutions for allowing the parties to consolidate their proceedings. In the opinion of the invited expert (a German academic), the current system suffices, as there is the possibility of consolidation of proceedings in Article 5 of the Matrimonial Property Regimes Regulation and Article 3 of the Maintenance Regulation. Therefore, there are some safeguards for consolidating proceedings in the areas of matrimonial property and maintenance. However, this does not guarantee consolidation in the same court, because, at least, the Matrimonial Property Regimes Regulation only regulates international jurisdiction and not local jurisdiction, and at the level of the local jurisdiction the consolidation could be not foreseen (for example, in Belgium). Regarding child-related matters, the expert shared the practice carried out by the majority of legal systems of separating child-related matters and matrimonial matters. In his opinion there is no reason to change this situation.

v.  Scope of Provisional Measures Further, the fourth question for analysis concerned the scope of provisional measures. Traditionally, the doctrine has been divided as regards to the possibility to adopt provisional measures in relation to matrimonial matters. Currently, the text presented by the Commission rules out this possibility, only allowing the adoption of provisional measures in relation to ‘the child or property belonging to the child’. In the database of the EUFam’s Project, five cases are listed where the courts have adopted provisional measures in matrimonial matters. The invited expert (a German academic) welcomed the change introduced by the Commission, limiting the scope of the provisional measures to child-related matters

594  Arantxa Gandia Sellens, et al only. This finishes with the confusion created in the past by the CJEU.12 Additionally, there are now instruments covering the financial consequences of the divorces, and those are the instruments allowing provisional measures falling in their material scope. A Belgian academic shared the same view as the expert and indicated that the only scenario where provisional measures for matrimonial matters could be needed is if a court establishes for some reason that the spouses are authorised to live separately because they need to have that date from which they lived separately for the later divorce proceedings. A member of the MPI-Luxembourg clarified that apart from that situation, other cases found related to the need to update the records in the Civil Registry with the divorce proceedings or the need to allocate use of the common residence to only one of the spouses. A French lawyer explained the perspective of the practitioners in this issue. She said that what often happens in Member States like France is that the judge may make an initial ruling on the question of jurisdiction in matrimonial matters, and that decision could be appealed. In that context of lengthy proceedings, the possibility of asking for provisional measures is important. The invited expert pointed out that the court having jurisdiction on the merits can always take provisional measures related to matrimonial disputes. The question is whether there is really a need for a provision allowing a court without jurisdiction on the merits to take provisional measures in matrimonial matters.

vi.  Coordination among Judges In the current text of the Regulation and in the Brussels IIter Proposal, there are few provisions on cooperation between judicial authorities regarding matrimonial matters. It seems to be a field for parental responsibility issues. However, using some coordination rules for the flow of information among courts would be adequate for certain situations in matrimonial matters, for example regarding lis pendens. The invited expert (a German academic) expressed his scepticism, as in matrimonial matters the parties should inform the court of the proceedings conducted in other Member States, the court has no obligation ex officio. A British academic pointed out the problem that will arise with Brexit and the coordination of pending proceedings, as Article 19 Brussels IIa restricts its scope to actions among Member States. She suggested some solution along the lines of Articles 33 and 34 of Brussels Ia. The representative of the European Commission clarified that at the moment this is a matter left to the national legal systems and it also depends on reciprocity. Apparently, the situation will remain as it is for some time. Concerning the coordination among Member States, she shared her opinion in favour of having an explicit provision on judicial cooperation in matrimonial matters and suggested following the model established in the Insolvency Regulation.

12 Case C-256/09 Bianca Purrucker v Guillermo Vallés Pérez [2010] ECR I-07353, ECLI:EU:C:2010:437 para 86.

Internationally Shared Good Practices  595

B.  Relationship between Jurisdiction and Applicable Law i.  Coincidence between Forum and Ius The first issue that has been identified is the discrepancy and the lack of coordination between the rules and connecting factors respectively set by Brussels IIa and Rome III. As pointed out in the EUFam’s national seminars, the coincidence between forum and ius ensures a swift application of the law and limit additional delays and costs relating to the application of foreign law. In this context, the absence of choice-of-court agreements both in the current version of Brussels IIa and in the 2016 Brussels IIter Proposal has been lamented. The invited expert (a Spanish academic) started by pointing out the practicalities of the synchrony between forum and ius including the fact that it is less costly and more convenient for practitioners. However, a complete synchrony between forum and ius is not possible. First, there is a difference of logic between the two issues. On the one hand, jurisdictional rules rely on access to court, the right to a fair trial and therefore require alternative fora. On the other hand, choice-of-law rules aim at designating the law of the closest connection. This difference of logic implies, in practice, a potential discrepancy between the two. Second, it is important to recall that one of the reasons why no unanimity was reached among Member States regarding Rome III was the fact that some Member States did not want to apply foreign law. In this context, trying to achieve a complete synchrony – while the instrument applies to Member States that are willing to apply foreign law – appears to be contradictory. The invited expert (a Spanish academic) continued by stressing the importance of taking into consideration the different types of ‘customers’ who are addressed by International and European Family Law. Depending on their profiles, the issue of costs varies. There are easy cases in which, according to the national reports, the breakdown of the family (in which several nationalities coexist) does not imply any relocation as all the members of the family stay in the same Member State. In those cases, the application of the relevant legal instruments – regulations and conventions – will mainly result in the application of the law of the forum to every matter. This will no longer be the case once the Regulation on matrimonial property regime enters into force as it will be the law of the first habitual residence that will apply. In these instances, bearing in mind also the needs of the ‘customers’, it would probably be relevant to allow for a choice of the national court. Regarding the numerous alternative fora provided by Brussels IIa, the Spanish academic particularly insisted on the relevance of the ground of jurisdiction based on the forum of the plaintiff. For instance, in Spain, there are cases in which two third-state nationals were married in their country of origin but have lived in Spain for many years. A typical example is the following: the female spouse works in Spain, the husband goes back to the third state of their common nationality and the female spouse wants to file for divorce. In this instance, the forum of the plaintiff is an important ground to ensure access to court to particularly vulnerable litigants. During the debate, a German academic underlined the fact that there is a certain need for coordinating choice of law and jurisdiction rules. However, a complete synchrony is not possible for technical reasons, as stated by the invited expert. While

596  Arantxa Gandia Sellens, et al choice-of-law rules aim at identifying one particular law applicable to one specific question, jurisdiction rules traditionally require a good interest analysis. In other words, there are different interests to be taken into account: the most significant of these are the access to court and the convenience of the parties. For instance, it may be that a particular court is easier to access in general. However another court might be more convenient for the parties. Another important aspect to be taken into account is efficiency. As an example, in cases where the main issue relates to matrimonial property, it is very likely that there is an interest to have a decision from a court which has effective means of seizing that property. The coordinator of the project (an Italian academic) highlighted that according to the outcome of the project, the main problem for judges is the fragmentation of applicable law regarding the same situation, ie divorce and related aspects. In this regard, the possibility to choose the applicable law could be a useful tool to have a single law applicable to the entirety of the situation. This can only be prospective because we have to wait for all the EU regulations to be applicable. So far, most of the case law relates to Article 5 Rome III and most of the cases are from Italy. In addition, a German academic highlighted the practical consequences of combining electio fori and electio iuris. Allowing electio fori would be a step forward; however, such an agreement might be considered void in other Member States. This would undermine the objective of certainty. Concerning choice-of-court clauses, a Croatian academic underlined the relevance of choice-of-court agreements after the breakdown of the marriage. For instance, it would ensure that same-sex couples willing to divorce can have access to a court. A Belgian academic pointed out that the impossibility to make ex ante choice-ofcourt agreements is problematic given the objective of legal certainty sought by EU jurisdictional rules. In this regard, the mechanisms set in the Succession Regulation could be of relevance. Although this Regulation does not provide for independent choice of courts, it sets out some sophisticated contractual mechanisms whereby in a will or in a succession agreement parties may agree on the exclusive jurisdiction of a Member State’s courts, provided that the deceased chose this Member State’s law to govern his or her succession. Those state courts would be the ones of the forum whose law was chosen by the deceased to govern his or her succession. One may wonder whether such mechanisms could apply in the framework of Brussels IIa, eg by not exactly designating the courts of a Member State, but rather coercing parties to refrain from picking the ‘least favoured forum’ through a penalty that would ensue.

ii.  The Validity of Choice-of-Law Clauses Regarding the party autonomy set out in Rome III, a very limited number of decisions have been found. Nevertheless, several questions as to the validity of choice-of-law clauses have been raised during the EUFam’s national seminars. Requirements as to the formal validity of the choice of law are set out in Article 7. Those requirements vary greatly from one participating Member State to another. Some legal systems (for instance Germany) require a notarial act, whilst in others the written form is sufficient. Furthermore, Recital 18 establishes an informed choice principle in order to guarantee the fairness of the agreement and equal protection of the spouses. However, once

Internationally Shared Good Practices  597 again, there are no common standards among participating Member States as to what constitutes an informed choice. Another issue regarding the validity of clauses is the fact that an electio juris valid in a participating Member State could however be considered void before the competent authorities of a non-participating Member State. As stressed in the national reports, the invited expert (a Spanish academic) addressed the issue of the moment for concluding the choice-of-law agreement. It is important to distinguish two situations: a choice of law made when divorce is a hypothesis, and an agreement made when divorce is already on the table. In the former situation, spouses are in a certain emotional state and they do not consider all the relevant elements. For instance, in the Granatino case,13 a broker from the City signed a prenuptial agreement – which he could not understand because it was in German – as a token to prove to his father-in-law he was not marrying for money. When such choice-of-law agreements are signed and spouses are bound by them decades later, this might appear unfair. It is necessary therefore to raise awareness in this regard. Concerning the informed choice principle, the invited expert pointed out the difficulties of achieving informed consent. In her opinion, it is for the notaries and lawyers to ensure that the parties are informed. That being said, one may wonder whether professionals are properly prepared to take up this challenge. Indeed, not only is knowledge of foreign law required but it also implicates a mastery of comparative family law in order to be able to advise people as to what choice would be better for them. During the discussion, a German lawyer explained the mindset of young clients when they make a prenuptial agreement and tackle the question of applicable law. Most of the time, they do not project themselves into the future, but rather want to know generally what law would apply if they were to divorce in their current country of residence. A Belgian academic took up the issue of informed ex ante choice of law in prenuptial agreements. The issue of ensuring that informed consent is ensured, while such clause might have effects decades after it was concluded, is crucial. The question is whether additional safeguards should be set at the European level or whether such ability should be left to the discretion of Member States. The invited expert (a Spanish academic) underlined the existing safeguards to ensure an informed consent when a choice-of-court agreement is concluded. Under Catalan law, for instance, ex ante choice-of-law agreements require independent legal advice, a duty to disclose certain things, and very often there is a hardship clause. The main problem appears to be the evolution between the circumstances at the time the agreement is concluded and at the time it is enforced. Indeed, factual circumstances might change (such as mobility of the family), but also the designated law might change. A German academic highlighted the relevance of the mobility of families, pursuant to the conclusion of an electio fori. For instance, pursuant to German national law, the choice of law for divorce is automatically connected to the choice of law relating to the split of pensions (Versorgungsausgleich). Therefore, in case a couple gets divorced in another state where the lex fori is applied in order to obtain a speedier divorce, this could result in ousting the splitting of pensions according to German law. This outcome

13 Radmacher

(formerly Granatino) v Granatino [2010] UKSC 42.

598  Arantxa Gandia Sellens, et al could be very disadvantageous especially for certain spouses – such as stay-at-home parents – who have not worked. As a follow-up, the invited expert (a Spanish academic) pointed out that from a Spanish perspective, the Versorgungsausgleich is an unknown institution, and there is no choice-of-law provision in Spain. This is one of the reasons why the German community living in Barcelona never divorce in Spain but file for divorce in Germany. The current fragmentation of sources is problematic when ensuring an informed choice. From a practical point of view, this requires, inter alia, extended calculations. In this vein, a German academic underlined the fact that there are situations in which it should be carefully considered whether or not to enforce prenuptial agreements. In his opinion, this should not be a choice-of-law question, but rather it should be for the substantive law to provide appropriate rules to deal with such situations. In addition, there is a difference between the various matters that these prenuptial agreements address. On the one hand, there is the question regarding the assets existing prior to the marriage; other the hand, there are the issues relating to the income of the couple during their marriage. For instance, if the professional life of the couple has taken a direction different from the one they had in mind when signing the prenuptial agreement, it might be fair that a court, when addressing spousal support or alimony claims, takes that into consideration. With regard to the former aspect, it would be certainly unfair if the law does not open an avenue that gives certainty with what happens to one’s asset. There is an undeniable and legitimate need for choice of court and choice of law. Once again, this could – for instance – be tackled by substantive law. A German academic lamented the absence of a harmonised approach as to the moment when choice-of-law agreements may be made. Pursuant to Article 5 of Rome III, it is currently left to the Member States to allow choice-of-court agreements during the proceedings. The possibility to choose the law applicable during the proceedings would be welcome. It should be possible to make a choice-of-law agreement during the proceedings, like in the 2007 Hague Maintenance Protocol, or there should at least be the possibility to make an accord procédural in favour of the forum law. In addition, a British academic made some observations regarding party autonomy and the timing of the choice. Parties do not tend to anticipate matrimonial breakdown, in the same way as parties do not anticipate torts and delicts. In this regard, an interesting parallel can be drawn with Article 14 of the Rome II Regulation. Pursuant to this provision, choice-of-law agreements are restricted to a choice after the event which gives rise to damage has occurred. Such restriction – justified by the protection of weaker parties – could be extended to the matrimonial context. A Belgian academic distinguished three types of choice-of-law agreements in accordance with the time when they are concluded. The two first ones are ex ante: at the prenuptial stage and at the marriage breakdown but before going to court. The third one arises during the proceedings. As for the latter – which is covered by Rome III – it is to be welcomed that many national legal systems allow such a late choice. The EUFam’s database shows, for instance, that Italian courts sometimes ask the parties whether they want to make a choice-of-law agreement given that the lex fori might be less desirable in their given case. However, the distinction between the first two categories of choice-oflaw agreements is more complex. Unlike tort, marriages are more fluid; there is no exact date to consider when the marriage breakdown starts or when to change the choice-oflaw agreement because the family moves to another country, for instance.

Internationally Shared Good Practices  599 An Italian academic made some comments regarding the Italian practice on the law applicable to divorce. Italian courts have used the possibility to make a choice-of-law agreement as a way to offer a swift divorce – under their common national law – to couples who are resident in Italy and who could not divorce directly in Italy because of the Italian three-year separation requirement. This is a distortion of the use of Article 5 of the Rome III Regulation because it is triggered very late in the proceedings. Most of the time in these cases neither the parties, nor their counsels, are aware of the application of Rome III and they make wrong assumptions when preparing their application for divorce by only relying on Italian law (that does not allow electio iuris). Whereas this will soon stop being a problem since that period of separation will no longer apply, it still shows the importance of education and training of judges and lawyers. In this context, projects such as the EUFam’s Project are crucial in order to exchange experiences and ideas. On another note, in some instances it might make more sense for foreign nationals to go to their country of origin to have a swift and inexpensive divorce rather than retaining them in Italy where they are subject to the three-year period of separation. It is the responsibility of counsel to pursue the best interests of the clients.

iii.  The Application of Choice-of-Law Rules In the absence of choice of law, Article 8 sets out four hierarchical connecting factors. In the light of the case law and the information disseminated during the EUFam’s seminars, it appears that there is a lack of familiarity with Rome III. Judges tend either to apply domestic conflict-of-law rules or to straightforwardly apply national substantive law. The answer as to whether the courts should apply conflict-of-law rules ex officio varies among the Member States. So far, there is no CJEU case law related to the autonomous interpretation of the concept of habitual residence in matrimonial matters. The reviewed case law shows that – when applying the relevant conflict-of-law rule – judges tend to rely on the parties’ allegations and do not explain the reasoning of how to determine the habitual residence of spouses. During the seminars, Article 8(b) and its ‘more than one-year of residence’ condition has been criticised as being too rigid. Some advocate for a more flexible approach relying on a closest connection test. The invited expert (a Spanish academic) expressed some concerns about the absence of examination of the habitual residence unless it is contentious. As an example, reference was made to Rapisarda v Colladon.14 In this case, the court annulled 180 petitions for divorce in which Italian spouses pretended that they were habitually resident in the UK in order to get a speedy divorce. When it is not contentious, the national courts tend to rely on the parties and on basic administrative documents, which is problematic. During the discussion, an Italian academic insisted that there should be a clear stand at the EU level as to the mandatory character of conflict-of-law rules. This is crucial in order to ensure the effectiveness of EU private international law. On this premise, there must be adequate evidence of the factual elements that are used as the connecting factor.

14 Rapisarda

v Colladon [2014] EWFC 35.

600  Arantxa Gandia Sellens, et al As a follow-up, a German academic pointed out the fact that a lot of mandatory and substantive rules coming from the EU are not applied ex officio, but left to the parties in contentious proceedings. In the case of conflict-of-law rules, he suggested that courts should have more discretion in divorce proceedings and that they should not be strictly bound by parties’ submission. This would go in the direction of a procedural solution to ensure the effectiveness of the rules. In this vein, a German academic underlined the need to define what is understood by ex officio. Indeed, it is applied in numerous areas of law in the different Member States. For instance, the ex officio application of EU consumer protection law has been developed by the Court of Justice. The EU Procedural study recently conducted by the MPI Luxembourg dealt substantially with this issue.15 In this field, the ex officio application entails that the court gives a helping hand to the party who is in a less favourable position than the other. This approach should be favoured in the field of conflict-of-laws matters and it should be endorsed by the EU. This would be a balanced way to achieve effectiveness while currently there are some Member States where Private International Law is simply left out if no party refers to it. An English practitioner pointed out the importance of conflict of laws and private international law when it comes to property law. In practice, the question of recognition when the immoveable is located abroad is very complicated for the clients. From a more general perspective, the main problem appears to be a political one. One of the reasons why the United Kingdom voted to leave the EU is a general feeling that Brussels interferes too much. Overall, there has been a failure to persuade citizens that Member States are at the centre of the initiative and that all these harmonised rules aim at helping EU citizens. In other words, it appears that there are stakeholders with diverging interests on the table: the lawyers, the parties, the Member States. The Rapisarda v Colladon case is a great example of this difficulty to convince citizens that what is achieved by the EU legislator is in their interests.

iv.  The Application of the Law of Third States Another important issue that was highlighted is the application of foreign law. In general, the burden of proof of foreign law and the related costs constitute substantial practical difficulties. At the EU level, the European Judicial Network aims at providing information about Member States laws through national contact points. The reach of this mechanism appears to be limited as it is mainly relevant in cases where parties agree about the content of foreign law. Overall, the assessment of foreign law relies on experts, who entail high costs. In an interesting German case, nonetheless, the court had to apply Thai law pursuant to Article 8 and the court self-established the meaning of the law without consulting experts. This discretionary decision was deemed reasonable, as there was no room for uncertainty.

15 An evaluation study of national procedural laws and practices in terms of their impact on the free circulation of judgments and on the equivalence and effectiveness of the procedural protection of consumers under EU consumer law (JUST/2014/RCON/PR/CIVI/0082).

Internationally Shared Good Practices  601 The application of the law of third states is even more problematic, given its limited accessibility. The creation of a database – especially for African and Asian law – has been suggested. In the framework of the project, the reviewed case law shows that thirdstate law is often applied as the law of the common nationality of spouses. This law also tends to be chosen for cultural reasons and/or to secure recognition and enforcement. Furthermore, the case law shows that parties also often tend to choose the law that provides for a swift and inexpensive divorce. For instance, there was a case where Kazakh spouses – who were habitually resident in Germany – argued that they chose Kazakh law, as the latter could provide them with a swifter divorce, while German law required a period of separation. The invited expert (a Spanish academic) stressed the fact that the main obstacle when it comes to the application of foreign law is the issue of costs. In practice, it is regrettable that some national courts only apply foreign law when it is requested by the parties. It is not compatible with the nature of EU regulations, however, as it always gets back to the question of costs. For instance, in Spain, judges have the obligation to apply foreign law but in practice they cannot afford spending any money in order to find the content of the foreign law. At the EU level, the European Judicial Network is not working satisfactorily because of the lack of financial means. The contact points are often overloaded with work. The creation of a European Institute of Comparative law similar to the Swiss Institute of Comparative Law would be very welcome. Once again, the question as to who would be financing the project is problematic.

v.  Internal Conflict-of-law Rules Concerning non-unified legal systems, some difficulties have been raised as to the application of internal conflict-of-law rules. Articles 14 and 15 set some rules in this regard. The collected case law shows for instance that sometimes there is no specification as to the law of the territorial unit. Some cases also illustrate a proper reference to Rome III. For instance, a choice-of-law agreement – valid pursuant to Article 5 – designated Pennsylvanian law, as one of the spouses was a US citizen. When applying Article 14(c), the Italian court surprisingly relied on the closest connection criterion instead of the choice of the parties.

vi.  Referral to the 1996 Hague Convention on the Protection of Children As for parental responsibilities, the 1996 Hague Convention on the Protection of Children applies in order to determine the law applicable, since Brussels IIa only covers jurisdiction matters. The 1996 Hague Convention on the Protection of Children is based on the principle of synchrony between forum and ius. In practice, the two instruments are well-coordinated and in most cases the lex fori – ie the law of the child’s habitual residence – applies. Nonetheless, the absence of an explicit referral to the provisions of the 1996 Hague Convention on the Protection of Children in Brussels IIa has been criticised. Indeed, an express reference could help practitioners and judges who are already having a hard time with the fragmentation of rules.

602  Arantxa Gandia Sellens, et al

C.  Parental Responsibility i.  The Interplay between the Judgments on Custody and the Non-return Judgments Under the current text of the Brussels IIa Regulation, when a minor is abducted to another Member State, the decision on the return of the child is up to the courts of the state to which the child has been abducted. That decision is ‘autonomous’ from the decision on the parental responsibility of the child, which will be decided by the courts of the Member State where the child was habitually resident, as a general rule (reaffirmed by the CJEU in the Rinau case16). This autonomy among decisions could give rise to non-harmonic solutions. However, the interplay among the decision on custody and non-return has now been revised in the text of the Brussels IIter Proposal. There, the suggestion is that the court shall examine the question of custody of the child taking into account the child’s best interests and the evidence and reasons for refusing the return of the child. The invited expert (a representative of the European Commission) began the assessment by pointing out how the current position of Article 11 within the text of Brussels IIa is confusing due to the fact that it is situated within the chapter about jurisdiction. Therefore, the Brussels IIter Proposal has relocated the provision in a new chapter. Apart from some procedural changes, the expert remarked that no major changes were introduced regarding Article 11. A description was then given by the expert concerning the current overriding mechanism and explained that, in general, the Brussels IIter Proposal does not introduce many changes to it, because the Commission’s programme was the abolition of exequatur, a goal which has already been achieved as to the overriding mechanism.17 The invited expert explained that the Brussels IIter Proposal contains a better redraft of the relevant provisions, but the policy concept has not changed. Moreover, the expert noted that there is an ongoing search for rules that would make the whole process run smoother. For instance, difficulties arise when the court which refuses the return of the child has to transmit the judgment to the court where custody proceedings are already pending due to the lack of a translation regime. Under the proposed provisions, the documents are to be translated in the framework of the Hague return proceedings, meaning that the losing party, ie the applicant, will have to bear the translation costs, a solution which was not considered unfair by the invited expert, since the overriding mechanism benefits the applicant. The expert further explained that a new suggestion is to have a form with a list of documents attached and to have only the titles of the documents and a single text field translated. In that way, the court of the custody proceedings can subsequently make an informed choice as to which documents it needs translated, while the relevant costs will burden the custody proceedings. In case there are no custody proceedings pending, the expert pointed out that a thought exists to abolish the transmission of documents altogether and to introduce a system consisting of having the Hague Court, which is planning to refuse return of the child, inform

16 Case 17 Arts

C-195/08 PPU Inga Rinau [2008] ECR I-5271, ECLI:EU:C:2008:406. 11(8), 40(1)(b) and 42 of the Brussels IIa Regulation.

Internationally Shared Good Practices  603 the parties about the existence of the overriding mechanism and invite them to bring any challenges against the non-return order in the state of the child’s former habitual residence within custody proceedings. As to what kind of judgments should be capable to trigger the override mechanism, the expert noted that the Commission did not agree with the opinion held by the CJEU in the Povse v Alpago case,18 where the CJEU ruled that a simple return order given under summary proceedings can override the non-return order by triggering the override mechanism. The invited expert underlined that the overriding mechanism is justified only if there are proper proceedings by the proper court on the basis of full examination of the facts of the case and the best interests of the child, not on the basis of summary proceedings, a position which is now adopted in the Brussels IIter Proposal. There were various comments from the audience. An Italian academic pointed out that, according to the EUFam’s first assessment report on case law, there is no widespread habit of the national courts to refer to CJEU or ECtHR case law, which, according to this academic, means that national courts underestimate the human rights dimension of family law. Therefore, it must be remembered that in cases of parental responsibility and child abduction, any decision is capable of adversely affecting the right to family life which is enshrined in Article 7 of the EU Human Rights Charter and Article 8 of the ECHR.19 The academic stressed, as a general remark, that it should not be forgotten that both CJEU and ECtHR case law has to be taken into account in order to avoid the risk of condemnation by the ECtHR. A German practitioner commented that it is regrettable that the Brussels IIter Proposal did not introduce more changes. She then asked whether it is correctly understood that there are changes introduced by the new Brussels IIter Proposal regarding the enforcement of a return order within the custody procedure, since the Brussels IIter Proposal contains provisions allowing objections during the stage of enforcement, which was not allowed under the current Regulation. The invited expert replied that there is no change and the grounds for refusal of enforcement that are presently excluded still remain excluded. The invited expert described that only partial harmonisation as to the rules which govern enforcement is introduced in the Brussels IIter Proposal, a domain which up to this point was dealt with by national law. The expert noted that this has sometimes led to judgments not being enforced due to national law objections, despite being granted the exequatur (for those judgments which are subject to exequatur). The expert underlined that the provision does not establish a révision au fond of the judgment. The expert also remarked that the override mechanism judgments will continue to be enforceable without any control by the requested state. A Belgian academic asked whether the differentiation of the transmission of documents procedure on the basis of whether there are custody proceedings already pending will solicit more proceedings, prompting lawyers to advise their clients to make sure that they have a custody proceeding pending and increasing the rush to the court. The invited expert answered by admitting that this might indeed happen but it should not

18 Case C-211/10 PPU Doris Povse v Mauro Alpago [2010] ECR I-6673, ECLI:EU:C:2010:400. 19 Convention for the Protection of Human Rights and Fundamental Freedoms of the Council of Europe, concluded 4/11/1950 (United Nations, Treaty Series, vol 213).

604  Arantxa Gandia Sellens, et al be considered as a negative aspect, since an abduction has taken place and it needs to be resolved, preferably before the courts of former habitual residence of the child and at the earliest possible time. A French lawyer pointed out that there are Member States (Austria and Germany) who circumvent the overriding mechanism by not enforcing final judgments ordering the return of a child, himself having a relevant case pending against Austria in the ECtHR. He described that despite having won the Hague cases in Germany and Austria up to the Supreme Courts, six months later the other party triggered non-execution proceedings and the central authorities refused to enforce the return order. The lawyer is wondering what the position of the Commission is as regards this issue and whether this could be considered as bad faith on the part of the aforementioned Member States. The invited expert replied by noting that the Commission is aware of such instances and that it is not a case of circumvention of the overriding mechanism, but rather of poor national implementation of the Hague Convention. The Brussels IIter Proposal does not include a specific provision for such a case but it does for another issue, namely that where the child is further moved to another country. The Brussels IIter Proposal explicitly provides for the recognition and enforcement of a return order in the Member State where the child was further moved. Moreover, the expert has pointed out that the Brussels IIter Proposal contains a new provision whereby the state of the child’s previous habitual residence is informed if the return order has not been enforced within six weeks after the enforcement procedure had been instituted. The invited expert did not exclude infringement procedures, if there is a systematic and continuous violation by a Member State. Two British academics remarked that the use of Article 11 is not widespread. Few cases were found involving this provision and for half of them a certificate was issued, while only 20 to 25 per cent of them were actually enforced.

ii.  Interaction between the Brussels IIa Regulation and the 1996 Hague Convention on the Protection of Children The text of the current version of the Regulation gives priority to the Regulation over the Convention if the child’s habitual residence is in a Member State or if the recognition and enforcement of a judgment given in a Member State is sought in another Member State. Now, the Brussels IIter Proposal states some clarifications to that priority rule, giving way to the application of the Convention: 1) where there is a choice-of-court agreement in favour of a non-Member State but a party to the Convention; 2) in cases of transfer of jurisdiction to another State Party to the Convention; and 3) where proceedings are pending before a State Party to the Convention when a Member State is seised. The invited expert started by noting that the primacy of the Regulation over the 1996 Hague Convention on the Protection of Children is confirmed. The invited expert expressed the view that the three aforementioned issues do not constitute exceptions because the courts of the Member States have already reasonably applied the 1996 Hague Convention on the Protection of Children in cases where lis pendens issues arose that involved third-state connections. The expert gave an example of such an application by describing a situation where a child has its habitual residence in Germany and proceedings begin there, followed by the initiation of divorce proceedings in Switzerland, which is a party to the 1996 Hague Convention on the Protection of Children. In this example,

Internationally Shared Good Practices  605 the Swiss court would have ancillary jurisdiction over the child on the basis of the 1996 Hague Convention on the Protection of Children, while German courts would have already been seised on the basis of the habitual residence of the child. Therefore, the expert continued, it was considered favourable to regulate explicitly these issues in the Brussels IIter Proposal. As to the issue of the applicable law, the invited expert underlined that the Brussels IIter Proposal provides for the applicability of the rules on the applicable law of the 1996 Hague Convention on the Protection of Children when the jurisdictional rules of the Regulation are applied. Such a provision was deemed necessary because Article 15 of the 1996 Hague Convention on the Protection of Children, which opens the chapter on applicable law, assumes the application of the jurisdictional rules of the 1996 Hague Convention on the Protection of Children. A bolder reference to the rules on applicable law of the 1996 Hague Convention on the Protection of Children, like the one found in Article 15 of the Maintenance Regulation with respect to the 2007 Hague Maintenance Protocol, has been avoided mainly due to policy constraints, since such a provision would create an external competence of the Union and it is questionable how many Member States would favour it.

iii.  Transfer of Jurisdiction The functioning of the transfer of jurisdiction was also a discussed topic. At the seminar, the starting point for discussion was the positive assessment of the application of the current Article 15 of the Regulation, in light of the evaluation carried out in the EUFam’s First Assessment Report on Case Law. However, it was deemed necessary that a smoother application of this Article would be attained if coordination amongst the judges was more encouraged (the case Child and Family Agency v JD20 being an example of good coordination amongst authorities). However, this is not the common practice, and some courts do not apply Article 15, for various reasons. For example, either because the time limit given for seising the more competent court was too short, or because the courts confused this Article with a lis pendens situation. The results of the EUFam’s Questionnaire also highlighted this rare application of Article 15. The invited expert (a representative of the European Commission) remarked that when Article 15 was enacted, only the UK and Ireland were content with it, since it constituted a sort of codification of the forum non conveniens concept. However, the expert continued by stating that this attitude has changed, and currently many Member States consider that this provision should be applied more often, despite its exceptional character which stems from the fact that the jurisdictional rules of the Regulation in child matters are based on the principle of proximity with the child. The invited expert noted that there are some practitioners who understand Article 15 as only allowing a court already possessing jurisdiction to further transfer it, not to request it when it is not originally given. Consequently, the expert noted that the Brussels IIter Proposal splits the current Article 15 into two separate Articles, like the corresponding provisions in

20 Case

C-428/15 Child and Family Agency v JD [2016] ECLI:EU:C:2016:819.

606  Arantxa Gandia Sellens, et al the 1996 Hague Convention on the Protection of Children, in order to make it more evident that it is applicable in both directions.

iv.  The Abolition of the Declaration of Exequatur The next point discussed related to the new fast-track system for enforcement. The current version of the Regulation contains the requirement of applying for a declaration of enforceability as a general rule for enforcing a decision. But exceptions are made for rights of access and the return of a child. However, courts do not always take into consideration these exceptions. The system has now been changed in the Brussels IIter Proposal, where the previous exception has now become the rule. In other words, the declaration of enforceability disappears for enforcing the decisions on parental responsibility in general. This measure could also help celerity in the process of enforcement, avoiding situations as the one described in the ECtHR Case 53377/13 Strumia v Italy, where Italy was condemned due to the failure to put in place the necessary measures to maintain the ties of a father with his daughter. The invited expert (a representative of the European Commission) started by describing the current status. Exequatur has been abolished for judgments relating to access rights under Article 41 of the Regulation by using the certificate issued in the state of the origin of the judgment, while the choice to follow optionally the exequatur procedure is still left open for the applicant, as well as for the overriding mechanism. The expert noted that, in general, the abolition of exequatur will affect custody and some protection orders. The expert noted that in some countries, like Germany, where custody judgments cannot be enforced because they are considered to be like status judgments, the view among colleagues is that nothing is left to be further abolished. However, in the legal systems of the other Member States, the applicant is entitled to request the handover of the child as a result of a custody judgment. The expert reflected that recognition in EU law means to give a judgment the same effect it has in the state of origin, meaning that such a judgment needs to be able to be enforced in Germany too. Germany had implemented relevant provisions as regards the 1980 Custody Convention21 in order to allow the enforcement of such judgments, providing for a declaratory order by the exequatur judge, a solution which is now followed with respect to the Regulation too. As an example of an affected case, the invited expert mentioned the CJEU’s judgment in Case C-92/12 PPU,22 where the placement of a child from Ireland into an institution in England had been ordered. Enforcement requires a debtor who is not conforming to his/her obligations, whereas in that case the only person who could oppose this judgment, ie the holder of parental responsibility, was in agreement with it. Therefore, the question arose whether this could be considered enforcement. The invited expert remarked that the placement order functions in this case as the legal basis to transfer a child who has run away from the institution, since the child is a holder 21 European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children of the Council of Europe, concluded 20 May 1980 (United Nations, Treaty Series, vol.1496). 22 Case C-92/12 PPU Health Service Executive v SC and AC [2012] ECLI:EU:C:2012:255.

Internationally Shared Good Practices  607 of fundamental rights like freedom of movement and, therefore, there was a need to declare its enforceability. The expert then described that the Brussels IIter Proposal’s system consisted of a merger of the former Articles 41 and 42 of the Brussels IIa Regulation (where everything is concentrated in the state of origin of the judgment and no control whatsoever takes place in the state of enforcement) and the new Brussels Ia regime. However, this proposal caused frictions and therefore a new solution, one closer to the regime of the Brussels Ia Regulation, is being sought. This means that exequatur is abolished in the state of origin, but safeguards are put in the state of enforcement, giving it more powers of review. This became evident for the invited expert after the CJEU judgment in the Aguirre Zarraga v Simone Pelz23 case, where the Court ruled that, under the overriding mechanism, the state where the enforcement is sought has no power whatsoever over the enforcement and even a provisional stay of enforcement has to be requested in the state of origin of the judgment. This conclusion is, in the view of the expert, not appropriate when children are involved, because urgent matters cannot be assessed in another country, and it will be too late. Therefore, the Brussels Ia system is to be adapted to procedures where children are the object of enforcement. A Spanish academic referred to the tension between the case law of the ECtHR and the CJEU regarding the assessment of best interests of the child in the framework of the enforcement of a child’s return. Especially because it seems that the ECtHR carries out an analysis of the best interest of the child taking into account the particular circumstances of the case (as was seen in the ECtHR Case 41615/07 Neulinger) and the CJEU focuses rather on the best interests of children in the abstract. In relation to this issue, the invited expert (a representative of the European Commission) said that what preoccupied the whole community of supporters of the 1996 Hague Convention on the Protection of Children in the ECtHR Neulinger case was that it required a full assessment of the entire family situation of the child, along with an in-depth analysis of the child’s best interest in order to decide upon the Hague Convention return application. Consequently, there is a presumption that the ECtHR wanted the national courts to examine the substance of the best interests of the child. But in the ECtHR X v Latvia decision (No 27853/09), which was decided by the Grand Chamber, a very long passage on general principles was inserted into the decision, which is rather detached from the individual case, clarifying the relationship between the 1980 Hague Child Abduction Convention and decisions about return applications under that Convention and custody proceedings. The Brussels IIter Proposal has been drafted taking into account this last decision. The Spanish academic replied later recalling that some later ECHR’s cases have again referred to Neulinger as to the assessment of the best interests of the child, in spite of the X v Latvia decision.

v.  The Hearing of the Child An important and recurrent issue in all the EUFam’s Seminars and reports is the importance of the hearing of the child. One major problem that has arisen in practice is the

23 Case C-491/10 PPU Joseba Andoni Aguirre Zarraga v Simone Pelz [2010] ECR I-14247, ECLI:EU:C:2010:828.

608  Arantxa Gandia Sellens, et al lack of hearing of the child. With the current text of the Regulation, it is in the discretion of the court to give the child the opportunity to be heard. If the court holds that because of the age or maturity of the child a hearing would be inappropriate, there is no chance to speak. This mechanism is often abused by the courts, and even 15-yearold children are not heard. Even the European Court of Human Rights condemned Spain because a judge refused to give audience to two children aged 11 and 12 (ECtHR, Iglesias Casarrubios and Cantalapiedra Iglesias v Spain, No 23298/12). Now the Brussels IIter Proposal introduces the audience of the child if he/she is capable of forming his/her own views. The judge will have to give due weight to the child’s views. The discretion for assessing it might be used, however, in a non-harmonic way, as seen with the present text. In this regard, the results of the EUFam’s Questionnaire point out the need for a higher degree of harmonisation at the EU level. The invited expert stressed the fact that the Brussels IIter Proposal introduces a new Article 20,24 which constitutes a change in the system. Currently, the obligation to hear the child in Hague return proceedings exists in Article 11, a provision which could build on Article 13(2) of the 1980 Hague Child Abduction Convention. However, the Convention itself does not include an obligation to hear the child, whereas the Regulation’s obligation applies only to Hague proceedings. By virtue of the new provision an obligation of substantive law to hear the child in all matters of parental responsibility is introduced, which will be enabled every time the Regulation is applied. The expert pointed out that there are some who believe that a cross-border element is required for the Regulation to be applicable, but others consider the Regulation to be applicable each time a national court seised, regardless of the cross-border element. Therefore, this obligation would apply in all cases of parental responsibility, which is not a novelty, since it is already included in Article 12 UN Convention on the Rights of the Child25 to which all Member States are parties. However, since the UK and Ireland have not implemented this Convention in their domestic law, citizens cannot rely on these provisions. Article 20 would therefore make this obligation a directly applicable rule of EU law. An Italian academic pointed out that the results of the EUFam’s Questionnaire show that there is a general concern with the lack of minimum standards, and wonders if a good solution would be to establish a common minimum age for hearing the child. An Italian judge shared the Italian practice of hearing the child even in proceeding of divorce or separation by mutual consent and had highlighted its importance and advantages. The discussion was continued by a German judge, who described the German practice. In Germany, children are heard from the age of three. He agrees that there is a need to establish minimum standards. An Italian academic stated his concerns on how it could be politically controversial to establish minimum standards, setting a minimum age above which the judge should

24 The proposed Article reads as follows: ‘Article 20. Right of the child to express his or her views. When exercising their jurisdiction under Section 2 of this Chapter, the authorities of the Member States shall ensure that a child who is capable of forming his or her own views is given the genuine and effective opportunity to express those views freely during the proceedings. The authority shall give due weight to the child’s views in accordance with his or her age and maturity and document its considerations in the decision.’ 25 Convention on the Rights of the Child, concluded 20 November 1989 (United Nations, Treaty Series, vol 1577).

Internationally Shared Good Practices  609 hear the child, taking into account the very different ways of dealing with this issue in the different Member States. The invited expert (a representative of the European Commission) commented that the possibility of introducing minimum standards was explored but rejected as the recommendations of the Committee on the UN Convention on the Rights of the Child explicitly say that no minimum age should be established. Article 12 of the UN Convention on the Rights of the Child indicates that every child capable of forming his or her own views, regardless of how old the child is, should be heard. This requires a case-by-case assessment. Other minimum standards refer to how the child has to be heard. In some Member States it is the judge who directly hears the child, in others this is done by a social worker who afterwards reports to the judge. Both systems are considered sufficient. She also expressed her agreement in the importance to hearing the child also in proceedings of consensual divorce or separation, but that it is difficult to establish an obligation in practice.

vi.  Personal Scope of Application of the Provisional Measures Concerning the personal scope of application, according to the Brussels IIa Regulation, and taking into account the interpretation provided by the CJEU in the Detiček26 case, provisional measures can be taken regarding the child and his/her parents. However, in the text of the Brussels IIter Proposal, this approach has been limited to the child. The invited expert (a representative of the European Commission) described the reasoning behind this limitation. At the time of the negotiation of Article 20 of the Regulation, the recognition and enforcement of provisional measures was rejected at the European level. The reason behind this was the existence of jurisdiction in two states, dealing with the same child. Therefore, the adopted solution was to restrict the provisional measures to the territory of the court issuing them and to allow that in case of urgency, the court of the state where the child is present can also adopt protective measures. However, because of various drafting techniques, Article 20 was worded in such a way that the CJEU was then asked about its interpretation. The CJEU interpreted it as covering persons present in that state, extending it to the parents. This was unfortunate, because the protection of the child is independent of the fact whether one or two of the parents are also present in that state. As a consequence, it was proposed to copy Article 11 of the 1996 Hague Convention on the Protection of Children into the text of the Regulation, which is what Article 12 now does.

vii.  Territorial Scope of Application of the Provisional Measures The Brussels IIa Regulation and the CJEU interpretation in the Purrucker I27 case demonstrate that the territorial scope of these measures, when adopted by a court not having jurisdiction on the merits, is limited to the national territory of the court issuing the measures. However, this territorial scope has now been enlarged, as the



26 Case 27 Case

C-403/09 PPU Detiček [2009] ECR I-12193, ECLI:EU:C:2009:810. C-256/09 Purrucker I (n 12).

610  Arantxa Gandia Sellens, et al Brussels IIter Proposal includes the provisional measures within the provisions for recognition and enforcement in other Member States. The invited expert (a representative of the European Commission) explained that the court having jurisdiction under the Regulation for the merits of the case can issue any provisional measures at once and they will also circulate under the Regulation. That decision can be recognised and enforced in other Member States under the current system. However, where a court does not have jurisdiction under the merits, the current Article 20 follows the example of Brussels I. She also pointed out that the system established by the CJEU in the Purrucker I decision about Article 20, provided for three different categories of provisional measures, which is not easy for practitioners to understand. The first category relates to the court having jurisdiction on the merits, on which judgments can circulate. Secondly, where there are courts that do not have jurisdiction on the merits, you have to check whether the provisions of Article 20 have been complied with and if so, the judgment has effect in the state where it was given, but no cross-border effect. However, the CJEU stated, against the previously prevailing opinion, that the judgment issued by the court not having jurisdiction on the merits could circulate under national law or under other international instruments. That was a new addition triggered by the Advocate General and followed by the CJEU. Additionally, there is a third category: a decision adopting a provisional measure without having jurisdiction on the merits and without meeting the requirements of Article 20. Therefore, there is a provisional measure, but it should have never been given. There is no remedy to block this kind of measure under the Regulation.

viii. Mediation The recourse to mediation for the child abduction cases was very much commented in the EUFam’s national seminars. Recourse to mediation for child abduction cases is by no means a new development within the EU. As of 1987, recourse to the European Parliament Mediator for International Parental Child Abduction28 has been viable. However, it has now been explicitly introduced in the Proposal for recasting the Brussels IIa Regulation. Among the PIL practitioners, it is worth noting that the views are divided, expressing the advantages of mediation for these cases on the one hand (as a soft remedy to reach a solution by the parties), but also highlighting some disadvantages, such as the tense situation between the parents or the use of mediation to stall the proceedings (as was shown in the ECtHR Raw and others v France, No 10131/11). Although the Brussels IIter Proposal states that the mediation should not unduly delay the proceedings, it might be problematic to distinguish between a mala fide behaviour and the genuine need for more time for reaching a common solution. In regard to mediation, the invited expert (a representative of the European Commission) highlighted that the proposed rule is in the Chapter on child abduction. This provision has been proposed because many Central Authorities under the Child

28 More information is available at: www.europarl.europa.eu/atyourservice/en/20150201PVL00040/Childabduction-mediator (last accessed on 9 June 2017).

Internationally Shared Good Practices  611 Abduction Convention already provide a mediation framework and help the parents (the abductor parent and the left behind) to get together on speaking terms. Taking into account this experience, Article 23 of the Brussels IIter Proposal establishes that a court to which a return application under the Hague Convention has been made, shall examine as early as possible whether the parents are willing to engage in mediation. As for the European Parliament Mediator, the expert informed that the main problem of this figure is the lack of funding and legal basis for performing its functions.

ix.  The One Appeal Limit for the Cases of Child Abduction The one appeal limit for the cases of child abduction was also addressed in some EUFam’s national reports and therefore it was a topic of discussion during the International Exchange seminar. The length of the proceedings for cases of child abduction has always been a general complaint. The Regulation does not contain rules on the appeal instances allowed in each jurisdiction, but the Commission proposes to limit them to one. Here, some questions arise regarding the kind and the nature of appeal allowed (second instance or only cassation). Another question relates to whether as a result of this one appeal limit, it would be appropriate to oblige the first instance court to introduce preliminary questions to the CJEU, if necessary and taking into account that the number of instances hearing the case is much more limited. The invited expert (representative of the European Commission) explained that some Member States (like Germany or Italy) already have limited the appeals to only one. Some countries even allow the provisional enforcement of the judgment given in first instance, as the appeal can take too long to be decided. Therefore, the Commission has proposed a one appeal limit. And, in order to respect the autonomy of the Member States, the wording has been deliberately left open. Like that, each Member State is free to choose the kind of appeal covered by the limit. Additionally, it was problematic to state explicitly if the appeal covered had to be ordinary or extraordinary, as those categories differ from country to country. There are also constitutional concerns to be considered, as the recourse to constitutional courts cannot be excluded.

x.  Concentration of Courts for Child Abduction Cases Another issue discussed during some EUFam’s national seminars was the concentration of courts for child abduction cases. The current version of the Regulation does not encompass provisions regarding the concentration of courts for child abduction cases. Nevertheless, this is a practice that has been already carried out by some Member States and has now been included in the Brussels IIter Proposal. It should be noted here that the size of the different countries in the EU varies a lot, posing the question of whether the smaller countries really need such a concentration. Moreover, the Memorandum of the Brussels IIter Proposal highlights the value of the experience. However, another key feature for reaching specialisation and celerity in the proceedings is training. Concerning the topic of concentration of jurisdiction, the invited expert (a representative of the European Commission) shared the concerns of the Member States who already have such concentration because they fear that the CJEU will interpret

612  Arantxa Gandia Sellens, et al this provision in a different way as they are already carrying it out. However, the practitioners from Member States where this practice does not yet exist have welcomed this change, which was difficult for them to introduce in their own jurisdictions. Regarding the small countries in the EU, the expert pointed out that a similar provision is already working well under the Community Design Regulation,29 which limits the number of courts as much as possible. The expert recognised that more information in the recitals might be helpful in this regard. As for the training of judges, the expert agreed that the training is a necessary part of specialisation and has to come before gaining experience. A British academic commented on some statistics, indicating that 80 per cent of all the appeals introduced at the EU level upheld the first instance decisions. A Greek academic followed up, sharing his view that the system in general is complicated enough to limit the number of appeals – with the overriding mechanism and similar provisions. In his opinion, no limits to the appeals should be set up. Regarding the issue of the kind of appeal allowed, a Spanish judge informed about the last reform of Spanish law, in which only one appeal is possible, and this appeal is an ordinary one. However, whereas recourse to the Supreme Court is not possible anymore, it is still admitted to file a claim before the Constitutional Court. Concerning the number of courts per country, the same Spanish judge argued that it is very complex to fulfill a strict limitation in complex countries like Spain, with many regions. He also shared the Spanish experience regarding the provisional enforcement of the first-instance decisions. In the past, this was possible in Spain. However, the secondappeal courts had the power to suspend immediately the provisional enforcement, on the ground of the best interest of the child, which frequently occurred. As a result, the system was not efficient and reversed. In his view, in order to avoid these problems, the best solution would be to have a rapid ruling at the second-instance level on which enforcement can be done without being suspended. An Italian academic shared her opinion on the need of concentration jurisdiction not only for child abduction cases, but also for parental responsibility cases. The representative of the European Commission disagreed in this point. In her view, the two issues have to be separate. She explained that the proceedings under the 1980 Hague Child Abduction Convention take place in a state which has no jurisdiction over the substance of parental responsibility. She continued, stating that the only common area for these two kinds of cases is the overriding mechanism, where the court has issued an order on non-return pursuant to Article 13 of the 1980 Hague Child Abduction Convention and then a family court which has jurisdiction over the substance of the parental responsibility has to decide whether the child shall be returned nonetheless.

29 Art 80(1) of the Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs amended by Council Regulation No 1891/2006 of 18 December 2006 amending Regulations (EC) No 6/2002 and (EC) No 40/94 to give effect to the accession of the European Community to the Geneva Act of the Hague Agreement concerning the international registration of industrial designs [2006] OJ L 386: ‘The Member States shall designate in their territories as limited a number as possible of national courts and tribunals of first and second instance (Community design courts) which shall perform the functions assigned to them by this Regulation.’

Internationally Shared Good Practices  613 She pointed out that in Belgium, the concentration of jurisdiction is established for both overriding mechanism proceedings and parental responsibility cases, and this creates problems because it delays the proceedings. While a case of child abduction is heard by a local court, if the other country decides against the return of the child to Belgium, then the jurisdiction for assessing the application of the overriding mechanism and the question of custody is given to another court. This change of courts creates delays.

xi.  Coordination among Central Authorities The improvement of the coordination among Central Authorities is also a key feature for analysis. The coordination among Central Authorities, although in general described as positive (for example, looking at the answers provided to the EUFam’s Questionnaire), has received some criticism, when comparing how certain Central Authorities from some countries deal with their issues better than others. The Brussels IIter Proposal focuses on the strengthening of resources of these Central Authorities. A representative from the Croatian Central Authority emphasised the importance of strengthening the resources of the Central Authority, especially in view of some additional functions and additional responsibilities. She welcomed the new provision in the Brussels IIter Proposal in this regard. A British academic agreed that the resources are very important. However, some governments argue that this is an interference with national independence. The invited expert (representative of the European Commission) explained that the new rule on the resources for Central Authorities seeks to help these bodies by creating an international obligation to fulfill that serves as justification for getting support at national budgetary negotiations.

xii.  Protection of Unaccompanied Minors The phenomenon of the large amounts of refugees coming to Europe as a result of the Syrian war emphasised the problem of establishing some kind of protection for unaccompanied minors. Here, the question for the debate was if the rules contained in Brussels IIa are of assistance. Only two interventions from the audience followed. A Spanish academic informed that to her knowledge there is no case as such in the case law of the different Member States. But she recalled the CJEU Case C-648/11.30 In this case, the CJEU decided that where an unaccompanied minor with no member of his family legally present in the territory of a Member State has lodged asylum applications in more than one Member State, the Member State in which that minor is present after having lodged an asylum application there is to be designated the Member State responsible. A Belgian academic shared the information she gathered after contacting Central Authorities on this issue, but they did not have cases on unaccompanied minors. However, she described two cases where two families of refugees were split up, and the 30 Case C-648/11 The Queen, on the application of MA and Others v Secretary of State for the Home Department [2013] ECLI:EU:C:2013:367.

614  Arantxa Gandia Sellens, et al children were with one of the parents. The Central Authorities used Brussels IIa and the 1980 Hague Child Abduction Convention for establishing contact between the children and the absent parent, although neither of the cases were child abduction cases.

III.  The Application of the Maintenance Regulation in Practice (Regulation and Hague Protocol) A.  Fragmentation of Family Matters between Different Regulations From the observations collected through the national seminars and the EUFam’s database, the main issue regarding the Maintenance Regulation seems to be the fragmentation of family matters between various instruments. The different texts in force notably have different scope, different grounds of jurisdiction and different procedures for recognition and enforcement. The case law collected demonstrates that this confusion results in many courts that correctly establish jurisdiction as regard to divorce or parental responsibility, but then rule on maintenance without applying the corresponding Regulation. Courts also have difficulties while applying the provisions to concentrate proceedings. The A v B case31 is an illustration of that. The Court of Justice of the European Union had to decide whether a maintenance claim was ancillary to divorce (Article 3(c)) or to parental responsibility (Article 3(d)). It was finally decided that parental responsibility proceedings have priority when the maintenance claim concerns children. The invited expert (a British academic) firstly explained that the problem of not, or incorrectly, applying the maintenance instrument is not new. Before 18 June 2011, the Brussels I Regulation was applicable to maintenance matters and judges, as well as lawyers, already tended to misapply the text. The difficulties should therefore be resolved by improving awareness of the Regulation, notably through training, to ensure that both judges and lawyers understand the rules and apply them correctly so that the system can work as well as possible. On the lack of coordination between instruments, it was explained that separate proceedings in two different Member States might create legal uncertainty and incur additional costs for specialised legal advice. It was stressed that those issues are inherent in the rules of the instruments. While the various possibilities offered in Brussels IIa for divorce do create inconsistency, in practice, jurisdictions often coincide. Indeed, if parties rely on the habitual residence, the difficulties can be avoided as across all matters it is the key connecting factor. It was added that referring to the current habitual residence also eases the enforcement process. Another solution would be to change the texts, but this seems very unlikely in practice. As the Regulations are there and stand as they are, the solution seems to be, again, to raise awareness and improve training so that the texts are used properly. Especially, as provisions to help ensuring consistency and coherence exist.

31 Case

C-184/14 A v B [2015] ECLI:EU:C:2015:479.

Internationally Shared Good Practices  615 Concerning party autonomy, it was explained that there does not seem to be any policy explanation regarding the inconsistencies. It was stressed that under the Brussels IIa Regulation there is the possibility of prorogation of jurisdiction for cases involving children but not for adults, whereas for maintenance it is the opposite. The explanation does not lie with an idea of protecting the weaker party. Coming to recognition and enforcement, it was stressed that again the rules are incoherent, not only between the instruments but also within the Maintenance Regulation as such. There seems to be no real policy justification on that. However, because these issues are inherent in the rules of the instrument there is no quick fix. The only solution lies again with training.

B.  Jurisdictional Grounds and Public Authorities A question that was discussed during the national seminars concerned public authorities. They often act in place of the original creditor to recover maintenance debts and in that situation, it is seemingly unclear whether they themselves can rely on the habitual residence of the creditor to seise a court (Article 3(b), Maintenance Regulation). Recital 14 has been interpreted by some as meaning the Authority could indeed act on that ground, whereas others believed the Recital only concerned recognition and enforcement. The invited expert (a British academic) argued that public bodies cannot rely on the habitual residence of the original creditor. She referred to the definition of creditor found in Article 2(10), which refers to an individual. Article 64 makes an exception to this definition by indicating that public bodies can be creditors, but for recognition and enforcement purposes only. Reading those two articles in conjunction with Recital 14, intentionally excludes public bodies as creditors for the purpose of jurisdiction. This approach is also confirmed by the case law of the CJEU under the Brussels Convention. The expert specified that although public bodies have to act in the place of the debtor (Article 3(a), Maintenance Regulation), regarding applicable law, the law of the habitual residence of the creditor normally applies (Article 3, 2007 Hague Maintenance Protocol). Where public bodies are unable to collect maintenance debts based on that law, they are likely to fall within Article 4(1)(b) of the 2007 Hague Maintenance Protocol which provides that the law of the forum should apply. However, if the public body creditor is not entitled to maintenance under that law, then the law of the creditor applies instead. As a result, the public body should always be able to obtain a maintenance order in the state of the debtor’s habitual residence if they are entitled to make the claim under the law of the state of their habitual residence. Regarding a claim for reimbursement, Article 10 of the 2007 Hague Maintenance Protocol specifies that the law of the public body will apply in any event. A representative of the German Central Authority explained that there is a problem with Article 3(b) not only as regard to applicable law but also concerning legal aid that public bodies can receive. She also explained that they usually reassign a reimbursement claim to the creditor. A French lawyer explained that couples who opt for the court of the joint nationality, often do so not only to get an easy divorce but also for financial reasons. However, the losing spouse will then not agree for the child support to be dealt with at the same place

616  Arantxa Gandia Sellens, et al and will prefer to go to the place of habitual residence of the children for what concerns them. There are two difficulties for practitioners in that case: the long gap between the two decisions and also the notion of child support that varies across Member States (eg, including the accommodation fees or not). Some kind of harmonisation would therefore be very helpful for practitioners.

C.  The 2007 Hague Child Support Convention and 2007 Hague Maintenance Protocol A third issue regards the 2007 Hague Child Support Convention and 2007 Hague Maintenance Protocol that determine the applicable law. The main aspect that has been discussed at national level is the application of both instruments and their relationship to third states. An issue that is especially problematic is when a state is party to the Convention but not the Protocol (Albania, Japan, Switzerland and Turkey). For some participants, only the Convention can apply whereas for others, the intention to include third states within the Protocol was expressed in the drafting materials. The invited expert (a British academic) stated that the explanatory report32 seems to suggest that priority should be given to the 2007 Hague Maintenance Protocol in states that are signatory to both. But the 1973 Convention can still apply in states that have not moved onto the 2007 Hague Maintenance Protocol. She additionally stressed that given the universal application of the 2007 Hague Maintenance Protocol, it does not matter that the applicable law is that of a non-contracting state (universal application). Another difficulty raised regarding the 2007 Hague Maintenance Protocol is the interpretation of the term ‘closer connection’ in Article 5, applying in case of annulment of the marriage. The invited expert (a British academic) suggested that the provision is meant for use in cases where the closer connection is obvious and only when a party objects to the other law. In examining that possibility, the explanatory report indicates that the court should consider all connections to the marriage, and assess whether they are more or less significant than the current habitual residence of the creditor. Where the parties spent most of their married life in one state (eg Austria) which is a different state to the state of the applicable law under Article 3 (eg Italy), Austrian law would have a closer connection to the marriage. She added that the closer connection has to be to the marriage itself, not the spouses generally. An academic from Belgium explained that Article 5 is not an easy provision. It is discretionary and is sometimes used too broadly in the sense that some courts use the provision to apply their own law. It is also unclear which period should be the reference to assess the closer connection, is it at the time the court is seised? The invited expert replied that from the explanatory report of the 2007 Hague Maintenance Protocol, it is necessary to look at all the connections to the marriage since it occurred. The academic additionally wondered whether the fact that the closer connection favours the creditor should play a role. 32 A Bonomi, ‘Explanatory Report on The Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations’.

Internationally Shared Good Practices  617 A lawyer from France asked about the link with maintenance when referring to the closer connection with the marriage. The place of the habitual residence seems like a more logical factor for assessing the need of the creditor. The invited expert replied that if it is a new habitual residence, there is a tenuous link to the marriage itself. She added that this provision can be seen a bit as party autonomy since the parties object to one law in order to have another law applied. The same applies in case of submission to a court; the parties might have no actual connection to that court.

D.  The Nature of Some Benefits At national seminars, the issue of the qualification of child benefits (eg Kindergeld), as state benefit or child income was brought up, as it impacts the calculation of the maintenance payment. The invited expert explained that this problem relates to national laws and how national systems are set up regarding the calculation of child support. In countries where child maintenance is decided purely on need, then state benefits may have more importance as a deduction from the calculation if the child’s needs are met. However, in countries where it is predominantly about making the responsible parent pay a percentage of their income towards the child, then the amount of benefit available is not important. This is a different payment and should be considered as a different payment. This question of interpretation and calculation is therefore a matter of applicable law. The invited expert further specified that state benefits will usually, if not always, be paid by the government in the state of the creditor’s habitual residence. The benefits are only going to be paid in line with national law, so it could be the case that even if an attempt is made to make a deduction from the money due by the paying parent, the deduction could be very low if state benefits are low. If the policy in the creditor’s state is for the creditor to keep all money available in order to prevent child poverty, then it could be against their public policy to deduct benefits from the maintenance calculation. It is a very complex topic. The problem will seemingly mainly appear in case of prorogation under Article 12 of Brussels IIa and Article 3(d) of the Maintenance Regulation. This is linked to the inconsistencies in the jurisdictional provisions across the instruments. A representative of the German Central Authority explained that in Germany, irrelevant of the applicable law, there is a possibility to receive the difference if the amount of child benefit received is lower than in Germany. She specified that the Central Authority informs mothers of that possibility. A German academic asked whether there is an explicative statement explaining that this would be excluded from the calculation of the maintenance of the child and the representative of the Central Authority confirmed. A German academic referred to Article 11 of the Protocol which specifies that questions related to the calculation of the maintenance should be dealt with according to the applicable law. The problem is only when the jurisdiction, the applicable law and the country of habitual residence do not match. In that case, it is difficult to know how to integrate the different benefits in the calculation, as the different states have different approaches.

618  Arantxa Gandia Sellens, et al A representative of the Croatian Central Authority stated that in Croatia they do not deal with the question of children’s allowance under the EU and Hague instruments but with the EU regulations which relate to coordination of social security issues.

E.  Right to Apply for a Review In relation to Article 19 of the Maintenance Regulation and the right to apply for a review, in case of a default of appearance, it is seemingly not clear which legal remedies are available, at which stage it is possible to apply the remedies (state of judgment or State of enforcement) and therefore which court will have jurisdiction. The invited expert stated that the problem of the competent court seems to relate only to an incorrect translation in the Croatian text. The review under Article 19 should take place in the state of origin – the state that issues the judgment. Regarding the remedy, she referred to Article 19(3) and explained that either the review should be rejected or the decision should be declared null and void. In the latter case, a new application for a decision must commence. The expert further cited Article 21(3), explaining that a decision might be enforced even though it is later declared null and void based on Article 19. A German academic inquired about the implementation process, at the national level, to complement Article 19. The invited expert replied that the procedure to be followed for the review can be enacted by national law but regarding the remedy there is not much room left by Article 19(3). It was noted that no practitioners attending the seminar ever applied the provision.

F.  Third States Beside the question of The Hague Conventions, a problem raised relates to incomplete or unclear judgments from third states and parties subsequently applying in a Member State. It appears unclear whether the parties should start new proceedings for a decision, or, that the claims on maintenance should be considered as a modification of the condition of the divorce. The invited expert noted that this question is to be dealt with by national law as it is not covered by the Maintenance Regulation. She added that in England and Wales, Part III of the Matrimonial and Family Proceedings Act 1984 allows the English courts to issue a decision on maintenance following an overseas divorce, either because no decision on maintenance was given or the maintenance awarded was too low.

G.  Central Authorities The main struggle appears to be that collaboration with and between Central Authorities is sometimes difficult. Additional to their difference in nature (judicial or administrative), their action and powers also differ across Member States.

Internationally Shared Good Practices  619 The Court of Justice of the European Union was seised of a question on Central Authorities and maintenance in the case MS v PS.33 On 9 February 2017, the Court stated that the obligation for parties to go through Central Authorities to get enforcement, without having the possibility to directly seise the competent court, was contrary to the Maintenance Regulation. The invited expert confirmed the difficulties evoked and additionally pointed out a difference in the resources available for Central Authorities. All those divergences are reflected in the case law. She advocated for more clarity and structure and pointed out that the Brussels IIter Proposal does try to tackle the issue, notably through allocating minimum resources. She stressed the importance of their function. A representative of the German Central Authority said that in general, cooperation works and can be really efficient. She believed it would be helpful to concentrate competences. In some states, authorities for outgoing and incoming cases are different and it complicates the communication. A French practitioner who collaborated with Central Authorities from seven countries stressed that there are many problems of cooperation, of competency and of legal training, but also of transparency. There are currently tensions between France and Austria regarding cooperation among their authorities. He suggested that Central Authorities should be seen as public authorities fulfilling the international responsibility of the states before the European Court of Human Rights. He mentioned the case for which France was condemned for breach of Article 8 because the actions of the French authorities were insufficient to execute a judgment ordering the return of a child.34 Regarding, the Brussels IIter Proposal, the practitioner believed the European Commission did not go far enough. It should have provided clear transparency obligations to the Central Authorities. A representative of the Croatian Central Authority explained than in Croatia the Central Authority depends on the Ministry for Demography, Youth and Social Policy and is also in charge of the Hague and New York Conventions. She stated that cooperation is swift and efficient. They work mainly with Germany, Austria, Ireland and the United Kingdom. She also mentioned the efficiency of the European Judicial Network, where they can have bilateral meetings when needed. Regarding Case C-283/16 (aforementioned) of the Court of Justice, the representative of the Croatian Central Authority asked how it articulates with Article 55 and recalled that under the 2007 Hague Child Support Convention, parties can apply directly to a court. The invited expert explained that the two routes are possible and that it is not possible to be forced to go through the Central Authorities. However, if there is a request for legal aid, it is necessary to go through Central Authorities.

H. The Exequatur, Language and Translation On the exequatur, despite its abolition, it was stressed that recognition and enforcement remain difficult due to language and translation problems. Even though there are

33 Case 34 Raw

C-283/16 MS v PS [2017] ECLI:EU:C:2017:104. and others v France, No 10131/11 (ECtHR, 7 March 2013).

620  Arantxa Gandia Sellens, et al standardised forms available, the language versions are not always accurate. The forms are also perceived as being too numerous, complex and difficult to complete. The invited expert first clarified that regarding enforcement as such, since the Regulation has been in force for a few years, there are fewer and fewer cases of exequatur as the newer procedure is now applicable to most cases. As regard to the public policy exception, the expert noted there has not been any real problem with the concept in the cases mentioned in the handout. Concerning the translation, she explained that it is a procedural issue and there is not much that can be done. Additionally, the expert mentioned Article 47 (Maintenance Regulation) and the need to provide legal aid for recognition and enforcement if it has been provided for establishment. Some states are not happy with this because they have different rules on legal aid internally even though for child support issues there is legal aid under the Regulation. A representative of the German Central Authority noted that the forms are still new and therefore training is important for everyone and the Authority works on that. A representative of the Croatian Central Authority mentioned that all the forms were not available in Croatian on the E-portal website and it delayed the process but it has now been solved. She then explained it was not clear whether the forms should be filled in the language of the country issuing the decision or the language of the one receiving it. And depending on the answer, who should bear the translation costs when the translation tools on the portal are not sufficient? The invited expert replied that according to Article 59, there is an obligation to translate only when necessary. An academic from Croatia inquired about adjustment – automatic or otherwise – of the amount of the maintenance obligation and the impact it can have on enforcement. There do not seem to be any such cases concerned in the database so far. A German practitioner explained that automatic adjustment exists in Germany and does not seem to create problems. The academic from Croatia continued, stating that the problem is when German judgments are to be enforced in states where this adjustment does not exist. A German practitioner replied that the answer lays in a judgment being concrete enough, and also referred to the 2007 Hague Child Support Convention system.

I.  Maintenance and Brexit On maintenance and Brexit, the invited expert explained that the United Kingdom will hopefully join the 2007 Hague Child Support Convention as an independent state. It should be enough as regard to child support as it is similar to the current system (regarding Central Authorities and legal aid). The only difference is its indirect rules of jurisdiction, but they are rather equivalent to the rules in the EU Regulation, so if there is jurisdiction under the EU Regulation then it should be recognised in the United Kingdom under the indirect rules in the 2007 Hague Child Support Convention. The only problem would be the missing lis pendens, if there are families that are trying to seise courts in a Member State and the United Kingdom, then the case could end up with two sets of on-going proceedings, but hopefully that will not be too much of a problem for child support. A German academic underlined that the question of the interplay between the EU and the Hague instruments will become of central importance.

Internationally Shared Good Practices  621

IV.  Succession Regulation: Selected Questions The expert who briefly assessed the Succession Regulation is a researcher of the MPI-Luxembourg. Here follows a summary on the presentation on this topic. The Succession Regulation was not much touched upon in the national meetings, possibly because practice on the Regulation is necessarily limited. Still, there are three preliminary references to the CJEU which are pending, and several national decisions which already show the variety practitioners will experience in the future.

A.  Three Requests to the CJEU Have Been Lodged The first relates to the Kubicka case.35 The question asked is if Articles 1(2)(k) and (l) or 31 of the Succession Regulation should be interpreted as rejecting the effects of the legatum per vindicationem foreseen by the law governing the succession, when this figure relates to an immovable situated in a Member State in whose legal system the legatum per vindicationem does not have real direct effect. Another pending case is the Mahnkopf case.36 The questions asked by the referring court are the following: 1.

2.

3.

Is Article 1(1) of the EU Succession Regulation (1) to be interpreted as meaning that the scope of the regulation (‘succession’) also covers provisions of national law which, like Paragraph 1371(1) of the German Bürgerliches Gesetzbuch (BGB, Civil Code), govern questions relating to matrimonial property regimes after the death of one spouse by increasing the share of the estate on intestacy of the other spouse? If the first question is answered in the negative, are Articles 68(l) and 67(1) of the EU Succession Regulation in any case to be interpreted as meaning that the share of the surviving spouse may be recorded in full in the European Certificate of Succession, even if a portion of it stems from an increase pursuant to a rule governing matrimonial property regimes like Paragraph 1371(1) of the Civil Code? If this question is to be answered in the negative in principle, can it nevertheless be answered in the affirmative exceptionally for situations …

The last one is the Oberle case.37 The issue, as it relates to the scope of the jurisdiction for producing certificates of succession, is: Is Article 4 of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession (1) (Regulation No 650/2012) to be interpreted as meaning that it also determines exclusive international jurisdiction in respect of the granting, in the Member States, of national certificates of succession which have not been replaced by the European certificate of succession (see Article 62(3) of Regulation No 650/2012), with the result that divergent provisions adopted by national legislatures with regard to international jurisdiction in respect of the granting of national

35 Case 36 Case 37 Case

C-218/16 Aleksandra Kubicka, Opinion of Advocate [2017] ECLI:EU:C:2017:387. C-558/16 Doris Margret Lisette Mahnkopf [2018] ECLI:EU:C:2018:138. C-20/17 Vincent Pierre Oberle [2018] ECLI:EU:C:2018:485.

622  Arantxa Gandia Sellens, et al certificates of succession – such as Paragraph 105 of the Familiengesetzbuch (the Family Code) in Germany – are ineffective on the ground that they infringe higher-ranking European law?

B.  Several National Decisions which already Show the Variety of Constellations Practitioners will have to Address in the Future i.  Doubts on the Scope of Application of the Regulation a.  Personal Scope and Doubts related to UK Citizens –– Whether the Regulation applies to the will of a UK national whose habitual residence was in Spain was a question for dispute in Spain, correctly decided by the Resolución de la DGRN (Spain) of 15 June 2016. –– Does a British citizen have a right to a European certificate of succession? The issue was tackled by the First Instance Court of Yambol (Bulgaria). The Regional Court held that as the United Kingdom was not part of the Regulation, an issue of a certificate for a British citizen would run contrary to the purposes of the Succession Regulation. The District Court of Yambol quashed the first instance decision and sent the case back to the Regional Court. It explained that Recital 72 of the Regulation clearly states that the court should issue the certificate upon request. It is true that the certificate shall not take the place of internal documents used for similar purposes in the Member States (Article 62(3)). However, the issue of the certificate upon request is mandatory. b.  Temporal Scope and Transitional Provisions Two (apparently) contradictory Resoluciones de la DGRN (Spain), one of 15 June 2016 and the other of 10 April 2017 must be recalled here. With the exception of the nationality of the deceased (one British, the other German), the underlying facts are very similar: both of the deceased had their habitual residence in Spain at the time of death. The British citizen had created his will in 2003 before a Spanish notary. He died after 17 August 2015. The German national had made a will in 2014 (the Regulation was already in force although it did not apply), passing away as well after 17 August 2015. Both had appointed as sole heir their respective wives, although they had at least one child –who according to Spanish law is a forced heir. In both cases there was a discussion about the applicable law: whether it was Spanish law, as a default rule, or English/German law. In the first case, the DGRN gave the conclusion that there had been a professio iuris in favour of English law; but there was not a professio iuris in the latter case. The first decision sought support in Article 83(4) Succession Regulation: ‘If a disposition of property upon death 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.’

Internationally Shared Good Practices  623 The disposition in favour of the sole wife would provide the base for the application of this provision, the consequence of which is that the law that could have been chosen applies not only to the particular disposition of property upon death, but to the whole will. In the expert’s opinion, the reasoning may be correct, and could explain the difference with the second case (besides the date of the drafting of the will: 2003–14, although it is not certain to what extent this is relevant, for a person who might die before the entering into force of the Regulation). If German law did not allow for a disposition in the sole favour of the wife, Article 83(4) Succession Regulation would not have played any role here. However, the DGRN also referred to Article 22, as if the legal institution foreseen there and in Article 83(4) were the same. Actually, it is not. Whereas Article 22 allows for a choice of law and in particular for an implicit choice, Article 83(4) establishes the fiction that a law has been chosen. The difference is clear: the actual will of the testator is only relevant under Article 22. For the purposes of Article 83(4) what matters is that the law that could have been chosen renders valid the disposition of property.

ii.  Jurisdiction: Habitual Residence and the Systemic Relations or Relations between EU Instruments The Kammergerich Berlin in a decision of 26 April 2016 interpreted the concept of habitual residence consistent with the CJEU case law as elaborated for the Brussels IIa Regulation. This point had been raised at the EUFam’s German National Seminar, where the prevailing opinion was expressed in the sense that habitual residence in the context of the Succession Regulation shall be interpreted for this Regulation, following its Recital 23. The Kammergerich Berlin decided otherwise. Conversely, the OLG Hamburg, several months later, in 16 November 2016, preferred an interpretation according to Recital 23. This case also raises the question of the link between the choice of law by the deceased and the choice of forum by the heirs (Article 7). At the end it was nevertheless excluded, since several parties to the proceedings had contested the jurisdiction of the court.

iii.  Applicable Law a.  The Regulation and the National Doctrine of Renvoi It is worth mentioning here the Resolución de la DGRN (Spain) of 4 July 2016. In this decision, once it was decided that British law should apply, the issue of renvoi arose. The reason is Spanish-specific: the Supreme Court has clarified the role and scope of renvoi in the last decade in cases where the succession of British citizens was at stake. According to the Spanish Supreme Court renvoi is only admissible provided that it does not jeopardise the principles of unity and universality, and is only permitted to the first degree (renvoi to Spanish law). The Succession Regulation includes a rule on renvoi (Article 34) imposing compulsory renvoi under the conditions and with the limits therein reflected. In the light of it, the DGRN correctly concluded that the Spanish principles on renvoi have no room under the Regulation.

624  Arantxa Gandia Sellens, et al b.  States with more than One Legal System – Territorial Conflicts of Laws (Article 36 Succession Regulation) The Resolución de la DGRN (Spain) of 10 April 2017 had to decide which Spanish law is applicable to the succession of a German citizen residing in Valencia. It did so according to Article 36 Succession Regulation, which replaces the national solution.

iv.  Good Practice – Trying to Avoid the Duplication of Proceedings A Croatian case, involving a German court, deals with this issue. The case dates from 6 June 2016. A Croatian citizen (born in 1946) died in Zagreb (Croatia) on 25 January 2016. His last habitual residence was in Croatia. Although he had lived and worked in Germany for 25 years, when he retired he moved to Croatia. During his life he had a close connection to Croatia; he owned a house and regularly went to visit his family during holidays. Almost all of his property (both movable and immovable) was situated in Croatia. There was only a bank account registered in his name in Hamburg, Germany. His heirs were a niece and two nephews. The Croatian notary, as a body which exercises judicial function, applied the Succession Regulation properly and decided in the matter. The notary established his jurisdiction according to Article 4 since the habitual residence of the deceased was in Croatia and applied Croatian law according to Article 21, both of the Succession Regulation. As a measure of precaution, the notary contacted the local court in Hamburg, Germany in order to check whether proceedings had been initiated at the German court. The notary received a notification from the Municipal Court in Hamburg, Germany on 18 May 2016, which confirmed that no proceedings had been initiated in the matter.

38 Choice-of-Court and Choice-of-Law Clauses* FRANCESCA CLARA VILLATA AND LENKA VÁLKOVÁ**

I. Introduction����������������������������������������������������������������������������������������������������������������627 II. Autonomous Proceedings������������������������������������������������������������������������������������������629 A. Brussels IIa Regulation – Declaration of Consent in Parental Responsibility Matters������������������������������������������������������������������������629 B. Rome III Regulation – Choice-of-Law in Divorce or Legal Separation������634 C. Maintenance Regulation – Choice-of-Court in Maintenance Matters�������636 D. 2007 Hague Maintenance Protocol – Choice-of-Law in Maintenance Matters�����������������������������������������������������������������������������������������643 E. Matrimonial Property Regime Regulation�����������������������������������������������������645 i. Choice of Court in Matrimonial Property Regime�������������������������������646 ii. Choice of Law in Matrimonial Property Regime�����������������������������������649 F. Regulation on the Property Consequences of Registered Partnerships������652 i. Choice of Court in Property Regime of Registered Partnerships��������652 ii. Choice of Law in Property Regime of Registered Partnerships�����������655

* Disclaimer: this chapter on choice-of-court and choice-of-law clauses and model clauses is the result of a scientific research project elaborated for educational and general information purposes. It has not been tested in legal practice, and is neither intended to provide specific legal advice nor as a substitute for competent legal advice from a licensed attorney. The views, information, or opinions expressed herein are those of the authors and do not reflect the official opinion or position of the European Commission. The authors and the European Commission do not guarantee the accuracy, relevance, timeliness, completeness or the results from the use of the information and model clauses herein. Any action taken upon the information in this chapter is strictly at the user’s own risk. Both the Commission and the authors of this chapter disclaim any responsibility and/or liability for any use of the clauses in legal practice. ** Although this chapter represents a result of common research and reflection of both authors and was prepared in their mutual collaboration, section III.A is to be mainly attributed to FC Villata, sections II and III.B to L Válková, and section IV to both authors.

626  Francesca Clara Villata and Lenka Válková G. Succession Regulation����������������������������������������������������������������������������������������657 i. Choice of Court in Succession Matters���������������������������������������������������657 ii. Choice of Law in Succession Matters������������������������������������������������������660 a. Choice of Law – Succession as a Whole�������������������������������������������660 b. Choice of Law – Disposition of Property upon Death�������������������662 c. Choice-of-Law Agreements as to Succession����������������������������������663 d. Choice of Law – Succession as a Whole and Disposition of Property upon Death���������������������������������������������������������������������665 e. Choice of Law – Succession as a Whole and Agreements as to Succession��������������������������������������������������������������������������������������������666 III. Proceedings Dealing with Two or More Matters����������������������������������������������������670 A. Jurisdictional Rules��������������������������������������������������������������������������������������������670 i. Divorce or Legal Separation or Marriage Annulment and Parental Responsibility���������������������������������������������������������������������������������������������670 ii. Divorce or Legal Separation or Marriage Annulment and Maintenance between Spouses�����������������������������������������������������������������676 iii. Divorce or Legal Separation or Marriage Annulment/Annulment or Dissolution of Registered Partnerships and Property Regime��������678 iv. Divorce or Legal Separation or Marriage Annulment, Matrimonial Property Regime, Parental Responsibility and Maintenance���������������684 v. Succession and Property Regime�������������������������������������������������������������688 B. Conflicts-of-Law Rules��������������������������������������������������������������������������������������690 i. Divorce or Legal Separation and Maintenance between Spouses�������690 ii. Divorce or Legal Separation and Property Regime�������������������������������693 iii. Divorce or Legal Separation, Maintenance between Spouses and Property Regime����������������������������������������������������������������������������������������695 iv. Divorce or Legal Separation, Maintenance between Spouses, Property Regime and Succession�������������������������������������������������������������697 a. Divorce or Legal Separation, Maintenance between Spouses, Property Regime and Succession as a Whole���������������������������������697 b. Divorce or Legal Separation, Maintenance between Spouses, Property Regime and Succession as a Whole and Disposition of Property upon Death���������������������������������������������������������������������701 c. Divorce or Legal Separation, Maintenance between Spouses, Property Regime and Succession as a Whole and Agreements as to Succession�����������������������������������������������������������������������������������705 v. Succession and Property Regime�������������������������������������������������������������709 a. Succession as a Whole and Property Regime����������������������������������710 1. Same Nationalities of Spouses/Partners������������������������������������710 2. Different Nationalities of Spouses/Partners�����������������������������714 b. Choice of Law – Succession as a Whole, Disposition of Property upon Death and Property Regime������������������������������������718 1. Same Nationalities of Spouses/Partners������������������������������������719 2. Different Nationalities of Spouses/Partners�����������������������������723

Choice-of-Court and Choice-of-Law Clauses  627 c. Succession as a Whole, Agreements as to Succession and Property Regime���������������������������������������������������������������������������������727 1. Same Nationalities of Spouses/Partners������������������������������������728 2. Different Nationalities of Spouses/Partners�����������������������������733 IV. Unifying Ius and Forum���������������������������������������������������������������������������������������������738 A. Divorce or Legal Separation������������������������������������������������������������������������������738 B. Maintenance��������������������������������������������������������������������������������������������������������740 C. Divorce or Legal Separation and Maintenance����������������������������������������������742 D. Property Regime�������������������������������������������������������������������������������������������������745 E. Divorce or Legal Separation and Property Regime���������������������������������������750 F. Divorce or Legal Separation, Maintenance and Property Regime���������������753 G. Succession������������������������������������������������������������������������������������������������������������758 H. Succession and Property Regime���������������������������������������������������������������������760 i. Spouses/Partners of Same Nationality����������������������������������������������������761 ii. Spouses/Partners of Different Nationality����������������������������������������������766 V. Summary Table of the Provisions on Choice-of-Court and Choice-of-Law Clauses in Family Matters and Succession Matters���������������������771 VI. Relevant Provisions on Choice-of-Court and Choice-of-Law Clauses in Family Matters��������������������������������������������������������������������������������������������������������778

I. Introduction1 Choice-of-court and choice-of-law clauses are assumed to enhance legal certainty and predictability by allowing parties to agree and plan which court will have jurisdiction and which law will be applicable to their future disputes. Moreover, choice-of-court and choice-of-law clauses may prevent the unilateral strategic choice of jurisdiction (including abusive litigation tactics known as ‘rush to court’).2

1 This chapter benefited from the most insightful and valuable comments and suggestions provided by B Hess, M Requejo Isidro, A Gandía Sellens, A Faucon Alonso, as well as by F Ragno, on its earlier versions. Earlier versions of this chapter have also been circulated among the members of the EUFam’s Working Group on Model Choice-of-Court and Choice-of-Law Clause: E Bergamini, L Carballo Piñeiro, G Castelletti, E Chiaretto, S Dominelli, M Escher, R Espinosa Calabuig, D Damascelli, C Esplugues, JL Ferrer Sama, F ­Fiorillo, U Giacomelli, T Kokic, B Magarò, F Marchetti, I Medic, D Munoz, J Re, P Tamborero, M del Pilar Tintoré Garriga, I Viarengo, and M Župan. 2 The Brussels  IIa Regulation enables the spouses to choose between seven alternative grounds of ­jurisdiction laid down in Art 3 for their divorce or legal separation or marriage annulment. Once a divorce proceeding is brought before the courts of a Member State under the Brussels IIa Regulation, the law applicable to their divorce is determined pursuant to the national conflict-of-law rules or the Rome III Regulation, where applicable. Due to the differences between such rules, a couple may experience difficulty in predicting the law applicable to their particular case, which leads to a lack of legal certainty and predictability. Furthermore, given that the court first seised has jurisdiction to decide if there is a connecting factor, this often leads to a ‘rush to court’ with one spouse filing for divorce as quickly as possible in order to obtain a particularly

628  Francesca Clara Villata and Lenka Válková Model choice-of-court and choice-of-law clauses set forth in this chapter aim at facilitating navigation through the provisions on choice-of-law and choice-of-court clauses provided by the different EU legal instruments in family and succession matters in practice, in particular by: • describing which EU legal instruments and which specific provisions on choiceof-court and choice-of-law are applicable, what conditions must be fulfilled for their application and which law/court may be designated by the parties (including consent, substantive and formal validity); • demonstrating the use of choice-of-court and choice-of-law clauses by relying on practical examples; • providing choice-of-court and choice-of-law model clauses, which may be taken into  consideration by the parties in practice, as well as guidelines for drafting purposes. In light of diversity of jurisdictional grounds and connecting factors in the various EU legal instruments concerning different aspects of family life, this chapter tackles the need to commence different proceedings in two or more Member States and to apply the law of two or more states in correlated family and succession matters. In most cases, such diversity might be resolved through the application of the provisions on choice-oflaw and choice-of-court agreement as it will be demonstrated further. Finally, and yet importantly, this chapter makes an effort to unify ius and forum in one or more subject matters by using choice-of-law and choice-of-court clauses as a tool for their coordination. As to its structure, this chapter is divided into three sections: 1. ‘Autonomous Proceedings’, which deals with the application of choice-of-law and choice-of-court clauses in separate family and succession matters (ie parental responsibility, divorce, maintenance, property regime and succession). 2. ‘Proceedings Dealing with Two or More Matters’, which focuses on the connection, first, of jurisdiction and, then, of applicable law in proceedings concerning two or more subject-matters through the application of the rules, respectively, on choice-of-law agreements and choice-of-court agreements (eg, divorce, parental responsibility, maintenance, property regime and succession). 3. ‘Unifying Ius and Forum’, which links ius and forum in both autonomous proceedings and proceedings dealing with two or more matters.

favourable result as allowed under the lis pendens rule in the Brussels  IIa Regulation). Rush to court has already been addressed through the unification of the rules on the law applicable to divorce and legal separation, ie Rome III Regulation. The Rome III Regulation, however, is not yet applicable in all Member States. Moreover, rush to court tactics might be even more significant due to the fact that the Matrimonial Property Regimes Regulation connects automatically divorce proceedings with property regimes proceedings, as it will be dealt further in section III.A.iii.

Choice-of-Court and Choice-of-Law Clauses  629 Each section contains: a) a short description of the relevant provision(s); b) practical example(s); and c) model clause(s).

II.  Autonomous Proceedings A.  Brussels IIa Regulation – Declaration of Consent in Parental Responsibility Matters Under Article  12(3) of the Brussels  IIa Regulation,3 the courts of a Member State shall have jurisdiction in proceedings relating to parental responsibility matters if all conditions laid down in Article 12(3) of the Brussels IIa Regulation are satisfied:4 a) the existence of a substantial connection between the child and the court seised (eg, the habitual residence of one of the holders of parental responsibility, ­nationality of the child);5

3 According to Art 64 of the Brussels  IIa Regulation, the provisions shall apply only to legal proceedings instituted, to documents formally drawn up or registered as authentic instruments and to agreements concluded between the parties after 1 March 2005, in 24 Member States, on or after 1 January 2007, in Bulgaria and Romania, and on or after 1 July 2013 in Croatia, except for Denmark where the special status applies. It must be pointed out that, as to application ratione temporis, Art 64 refers to ‘agreements concluded between the parties’ under Art 12 of the Brussels IIa Regulation, which leads to applicability of the Brussels IIa Regulation whenever the parties enter into the agreement under Art 12 of the Brussels IIa Regulation after the date of its application for that Member State (without taking into the consideration the date of the institution of the proceedings), v: P Mankowski, ‘Article 64’ in U Magnus, P Mankowski (eds), Brussels IIbis Regulation: 2017 (European Commentaries on Private International Law, Otto Schmidt, Sellier European Law Publishers, 2017) 477. This rule differs from the Maintenance Regulation, which requires only the Member State court to be seised with the dispute concerning Art 4, at the time the Maintenance Regulation has become applicable in that Member State. 4 Although the wording of Art 12(3) refers to ‘in proceedings other than those referred to in paragraph 1’, the autonomy of the proceedings has been upheld by the CJEU, Case C-656/13 L v M [2014] ECLI:EU:C:2014:2364: ‘Article  12(3) of Council Regulation (EC) No 2201/2003 … must be interpreted as allowing, for the purposes of proceedings in matters of parental responsibility, the jurisdiction of a court of a Member State which is not that of the child’s habitual residence to be established even where no other proceedings are pending before the court chosen.’. In this respect see also E Pataut, E Gallant ‘Article 12’ in U  Magnus, P Mankowski (eds), European Commentaries on Private International Law, Brussels  IIbis – ­Commentary (Otto Schmidt, Koln, 2017) 163. Following judgment, Art 10(3) of the Brussels IIter Proposal eliminated any doubts in this regard by removing the wording in the text ‘proceedings other than those referred to in paragraph 1’. The Brussels  IIter Regulation further strengthens the idea of the autonomous proceedings, since Art 12(1) and 12(3) are unified into one provision on self-sufficient proceedings (Art 10). 5 Art 12(3) of the Brussels IIa Regulation expressly mentions the two examples above. However, the list of substantial connections is not exhaustive, and any other connection could be discussed before a Member State’s court (eg factors listed in Art 15 of the Brussels  IIa Regulation). The CJEU does not provide any ­guidance regarding the connection that can be considered as a ‘substantial’. According to Art 10(1)(a)(ii) of the ­Brussels IIter Regulation the former habitual residence of the child should be newly considered as a ‘substantial’ connection.

630  Francesca Clara Villata and Lenka Válková b) the agreement of all parties to the proceedings6 is concluded expressly or otherwise in an unequivocal manner at the time the court is seised;7 c) the jurisdiction of that Member State is in the best interest of the child.8 The evaluation of the fulfilment of the conditions laid down in Article  12(3) of the Brussels IIa Regulation allows important judicial discretion. As a consequence, a court may disregard the parties’ declaration of consent and decline jurisdiction.

Example No 1 – Article 12(3) of the Brussels IIa Regulation In 2012, Peter (a child with dual Estonian and Latvian citizenship) was born to an Estonian-Latvian couple, Mary and Martin, living in Lithuania. In 2014, Martin moved to Poland and Mary stayed in Lithuania with Peter.

6 Who is party to the proceedings should be determined by the national law, in this respect see C González Beifuss ‘Prorogation of Jurisdiction, in Jurisdiction in Matrimonial Matters, Parental Responsibility and International Abduction’ in C Honorati (ed), Jurisdiction in Matrimonial Matters, Parental Responsibility and International Abduction: A Handbook on the Application of Brussels  II-a Regulation in National Courts (Giappichelli, 2017) 191. See also Case C-565/16 Alessandro Saponaro and Kalliopi-Chloi Xylina [2018] ECLI:EU:C:2018:265, where the CJEU decided that a prosecutor who, according to the national law, has the capacity of a party to the proceedings commenced by the parents, is a party to the proceedings within the meaning of Art 12(3)(b) of the Brussels IIa Regulation, since the ‘EU legislature thus took care to use a term that encompassed all the parties to the proceedings, within the meaning of national law’. According to new Art 10(1)(b) of the Brussels  IIter Regulation the parties and also any other holder of parental responsibility must agree or accept the jurisdiction. Moreover, new Recital 23 of the Brussels IIter Regulation explicitly refers to Case C-565/16 Alessandro Saponaro and Kalliopi-Chloi Xylina, when it provides: ‘According to the case-law of the Court of Justice, anyone other than the parents who, according to national law, has the capacity of a party to the proceedings commenced by the parents, should be considered a party to the proceedings for the purposes of this Regulation and therefore, opposition by that party to the choice of jurisdiction made by the parents of the child in question, after the date on which the court was seised, should preclude the acceptance of prorogation of jurisdiction by all the parties to the proceedings at that date from being established.’ In consequence, Art 10(2) of the Brussels IIter Regulation provides, in case that persons become parties to the proceedings after the court was seised, they may express their agreement after the court was seised, but in the absence of their opposition, their agreement shall be regarded as implicit. 7 According to Art 10(1)(b) of the Brussels  IIter Regulation, the parties, as well as any other holder of parental responsibility must agree freely upon the jurisdiction, at the latest at the time the court is seised; or must expressly accept the jurisdiction in the course of the proceedings and the court must ensure that all the parties are informed of their right not to accept the jurisdiction. It must be stated in this regard that in case of acceptance of the jurisdiction in the course of the proceedings, such jurisdiction shall be exclusive in virtue of Art 10(4). In order to enhance the effectiveness of such exclusive choice-of-court agreements, a new rule on lis pendens has been established (Art 20(4) and (5) of the Brussels IIter Regulation), which practically mirrors the solution adopted in Art 31(2) of the Brussels Ia Regulation, which was a reaction to Case C-116/02, Erich Gasser GmbH v MISAT Srl [2003] ECR I-14693, ECLI:EU:C:2003:657. On the formal validity and time factor of the agreement see in this section ‘Formal Requirements’. 8 See Recital 12 which provides that the grounds of jurisdiction in matters of parental responsibility ­established in the Brussels IIa Regulation are shaped in the light of the best interests of the child, in particular on the criterion of proximity. See also new Recital 19 of the Brussels  IIter Regulation which provides that ‘any reference to the best interests of the child should be interpreted in light of Art 24 of the Charter of ­Fundamental Rights of the European Union and the United Nations Convention on the Rights of the Child of 20 November 1989 as implemented by national law and procedure.’

Choice-of-Court and Choice-of-Law Clauses  631

Mary and Martin would like to know which courts might be seised of an action for parental responsibility if they reach an agreement on the competent court. Mary and Martin might agree according to Article 12(3) of the Brussels IIa Regulation on: –– an Estonian court (eg, the substantial connection – Peter is Estonian national); –– a Latvian court (eg, the substantial connection – Peter is Latvian national); –– a Polish court (eg, the substantial connection – Martin is habitually resident in Poland); –– a Lithuanian court (eg, the substantial connection – Peter and his parents are habitually resident in Lithuania, a Lithuanian court could also establish jurisdiction according to Article 8 of the Brussels IIa Regulation, if Peter is habitually resident in Lithuania at the time the court is seised and no other court has jurisdiction according to Articles 9, 10, 12 or 15 of the Brussels IIa Regulation). However, as stated above in this section, although if Mary and Martin agree that one of the aforementioned courts has jurisdiction (eg, a Polish court), such court can disregard the parties’ declaration of consent. In other words, the Polish court can decide that the commencement of the custody proceedings in Poland would not be in the best interest of the child, even if the condition regarding the substantial connection by virtue of Article 12(3) of the Brussels IIa Regulation are satisfied. Example No 2 – Article 10 of the Brussels IIter Regulation In 2010, Peter (an Estonian national) was born to Estonian-Latvian couple, Mary and Martin, in Lithuania. In 2019, Mary moved to Estonia with Peter. Mary and Martin intend to bring legal action concerning parental responsibility over Peter. Therefore, they would like to know which courts might be seised. Mary and Martin might also agree on a Lithuanian court, eg, the substantial connection – former habitual residence of the child – please see Article 10(3) of the Brussels IIter Regulation, where it is specified that also former habitual residence of the child could be newly considered as the substantial connection. However, as stated above in this section, although if Mary and Martin agree that a Lithuanian court has jurisdiction, such a court can disregard the parties’ agreement. In other words, the Lithuanian court can decide that the commencement of the custody proceedings in Lithuania would not be in the best interest of the child even if the condition regarding substantial connection in virtue of Article 10 of the Brussels IIter Regulation are satisfied.

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Model Clause: 1. [Full name and identification details of party A] and [Full name and ­ identification details of party B], irrevocably accept jurisdiction of [Identification of a specific Member State court/Identification of the courts of a Member State] in r­ elation to parental responsibility over the child [Full name and identification details of the child], in accordance with Article 12 paragraph 3 of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility.9 2. It is hereby declared that the jurisdiction of the court hereinabove is in the best interest of the child, since [______________]. Date signed: [______________] Date signed: [______________] Signature of the party: [______________] Signature of the party: [______________] Note regarding Model Sub-Clause No 2: It is recommended to specify why the parties deem that the child has a substantial connection with that Member State, and that the jurisdiction of court/courts of that Member State is in the best interest of the child. However, the evaluation of the fulfilment of the conditions given in Article  12(3) of the Brussels  IIa Regulation, which covers the condition regarding ‘the best interest of the child’, allows for important judicial discretion. As a consequence, a court could disregard the parties’ statement and might end up with a different evaluation of the c­ ondition of ‘the best interest of the child’.

9 Should the legal proceedings be instituted on or after 1 August 2022, the Member State courts will examine the present Model Clause under the Brussels  IIter Regulation (Art 10) since the Brussels  IIa Regulation will be repealed from 1 August 2022. The Brussels  IIter Regulation shall apply only to legal proceedings instituted, to authentic instruments formally drawn up or registered and to agreements registered on or after 1 August 2022 (Art 100). Although under Art 64, the Brussels IIa Regulation applies to ‘agreements concluded between the parties’ after 1 March 2005, Art 100 of the Brussels  IIter Regulation refers to ‘agreements registered’ on or after 1 August 2022. Therefore, it seems that the Art 10 of the Brussels IIter Regulation shall apply to legal proceedings instituted on or after 1 August 2022. In other words, it will not be relevant when the choice-of-court agreement under Art 10 of the Brussels IIter Regulation was concluded, but the relevant time will be only the time of the institution of the proceedings. Therefore, the parties should be aware of the wording of Art 10 of the Brussels IIa Regulation and the differences between the same provision and Art 12 of the Brussels  IIa Regulation. In any case, the Model Clause formulated above should also fulfil the formal requirements requested under Article 10(2) of the Brussels IIter Regulation. Moreover, if the choice-of-court agreement will be concluded on or after 1 August 2022 (ie, the proceedings in such a case will initiate on or after 1 August 2022), the Model Clause above should refer directly to Art 10 of the Brussels IIter Regulation.

Choice-of-Court and Choice-of-Law Clauses  633 Formal requirements: Article 12(3) of the Brussels IIa Regulation prescribes that the jurisdiction of the courts must be accepted expressly10 or otherwise in an unequivocal manner by all the parties to the proceedings at the time the court is seised.11 In any case, it seems advisable to record the agreement in a document signed by the parties involved.12 Article  10(2) of the Brussels  IIter Regulation newly specifies that ex-ante agreement or acceptance of jurisdiction during the proceedings shall be in writing, dated and signed by the parties concerned or included in the court record in accordance with national law and procedure. Therefore, the model clause above should fulfil also the formal ­requirements requested under Article 10(2) of the Brussels IIter Regulation.

10 Only this part regarding formal requirements is relevant for the purpose of the Model Clause hereinabove. 11 In Case C-656/13 L v M (n 4) the CJEU stated that where the defendant brings a second proceedings before the same court, as the plaintiff did, and pleads the lack of jurisdiction of that court, it cannot be considered that the jurisdiction of the Member State court seised by one party of proceedings in matters of parental responsibility has been ‘accepted expressly or otherwise in an unequivocal manner by all the parties to the proceedings’ according to Art 12(3)(b) of the Brussels IIa Regulation. The CJEU stated this provision must be read with Art 16 of the Brussels IIa Regulation, which requires the existence of the agreement to be shown at the latest at the time when the document instituting the proceedings, or an equivalent document, is lodged with the court chosen. On the other hand, by argument a contrario, the CJEU held that Art 12(3)(b) of the Brussels IIa Regulation must be interpreted as meaning that jurisdiction has not been accepted where the defendant, on taking the first step required of him in the proceedings concerned, pleads the lack of jurisdiction of the court prorogation of whose jurisdiction is at issue. See also Case C-565/16 Alessandro Saponaro and Kalliopi-Chloi Xylina (n 6) para 25, where the CJEU stated that, where both parents make a joint application to the same court, they demonstrate their willingness to seise that court and, in so doing, their agreement with the choice of court having jurisdiction – in the absence of other facts contradicting that finding, that agreement must be regarded as ‘unequivocal’, within the meaning of Art 12(3)(b) of the Brussels IIa Regulation. It is still questionable whether the acceptance within the meaning of Art 12 of the Brussels IIa Regulation may also cover the typical rule on submission by appearance. The certain national case law has already permitted submission by an appearance in their case law, eg Trib Arrezzo, decreto 15 March 2011, ITF20110315, where the court considered that its jurisdiction on the parental responsibility could be grounded on Art 12 of the Regulation, since the mother did not contest the jurisdiction of the Italian Court. There is no uniform approach in the Member States in this regard. Brussels IIter may eliminate the doubts in this regard. It may be deduced from the wording that submission of appearance under Art 10 if the Brussels IIter Regulation will not be permitted for three reasons. First, according to new Art 10 of the Brussels  IIter Regulation the parties, as well as any other holder of parental responsibility must expressly accept the jurisdiction in the course of the proceedings. Second, in such case the court must ensure that all the parties are informed of their right not to accept the jurisdiction. Third, Art 10(2) of the Brussels IIter Regulation requires agreement to be in writing, dated and signed by the parties concerned or included in the court record in accordance with national law and procedure. On the other hand, establishing jurisdiction through the submission of appearance will be expressly permitted under new Art 8 of the Brussels IIter Regulation ‘Continuing jurisdiction in relation to access rights’, when paragraph 2 provides: ‘Paragraph 1 shall not apply if the holder of access rights referred to in paragraph 1 has accepted the jurisdiction of the courts of the Member State of the child’s new habitual residence by participating in proceedings before those courts without contesting their jurisdiction.’. 12 The agreement may be made in two counterparts, depending on the law applicable to the formal validity.

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B.  Rome III Regulation – Choice-of-Law in Divorce or Legal Separation The choice of the law applicable to divorce or legal separation is provided for under Article 5 of the Rome III Regulation.13 Articles 6 and 7 then address the issue of consent, material and formal validity of a choice-of-law agreement. Finally, spouses are not allowed to choose any law: a connecting factor between the spouses and the chosen law is required. Therefore, the spouses may designate: a) the law of the state where the spouses are habitually resident at the time the ­agreement is concluded; b) the law of the state where the spouses were last habitually resident, in so far as one of them still resides there at the time the agreement is concluded; c) the law of the state of nationality of either spouse at the time the agreement is concluded; or d) the law of the forum.14

Example: Lucia and Alessandro are Italian nationals living in Belgium. They married in 201615 and they wish to designate the law applicable to their divorce or legal separation. Lucia and Alessandro can designate: –– Belgian law according to Article 5(1)(a) of the Rome III Regulation (based on the habitual residence of Lucia and Alessandro at the time the agreement is concluded); –– Italian law according to Article 5(1)(c) of the Rome III Regulation (based on the nationality of Lucia and Alessandro at the time agreement is concluded).

13 The Rome III Regulation applies only to legal proceedings instituted and to agreements of the kind referred to in Art 5 concluded as from 21 June 2012. However, effect shall also be given to an agreement on the choice of the applicable law concluded before 21 June 2012, provided that it complies with Arts 6 and 7. The Rome II Regulation applies without prejudice to agreements on the choice of applicable law concluded in accordance with the law of a participating Member State whose court is seised before 21 June 2012. Please be aware that the Rome III Regulation is applicable only in Belgium, Bulgaria, Germany, Greece, Spain, France, Italy, Latvia, Lithuania, Luxembourg, Hungary, Malta, Austria, Portugal, Romania, Slovenia and by Decision (EU) 2016/1366 of 10 August 2016 confirming the participation of Estonia in enhanced cooperation in the area of the law applicable to divorce and legal separation [2016] L 216/23, the Rome III Regulation is applicable in Estonia from 11 February 2018. Under Art 3 of this Decision effect shall also be given in Estonia to an agreement on the choice of the applicable law concluded before 11 February 2018, provided that it complies with Arts 6 and 7 Rome III Regulation. Rome III Regulation shall apply in Estonia without prejudice to agreements on the choice of the applicable law concluded in accordance with the law of a participating Member State whose court is seised before 11 February 2018. 14 On the Model Clause where the parties agree on the law of forum, see section IV.A. 15 Under the Rome III Regulation the place of the conclusion of the marriage is not relevant.

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Model Clause: [Full name and identification details of party A] and [Full name and ­identification details of party B] irrevocably agree that [divorce and/or legal separation] between them is governed by and determined only in accordance with [Specification of designated law] pursuant to Article 5 paragraph 1 litt. [litt. a), b) or c)] of Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation. The same law will also govern the existence and validity of this choice-of-law clause or of any term thereof.16 The parties hereby agree that this clause does not apply to [maintenance obligations and/or property consequences of the marriage] between the ­ parties.17 Date signed: [______________] Date signed: [______________] Signature of the party: [______________] Signature of the party: [______________] Note: This Model Clause under the Rome III Regulation may be used only in the Member States which participate in the enhanced cooperation in the area of matters concerning divorce or legal separation. In other states, their relevance will be assessed through their domestic PIL rules. Formal requirements: Article  7(1) of the Rome III Regulation prescribes that the agreement shall be expressed in writing, dated and signed by both spouses (and an ­electronic communication ­providing for a durable record of the agreement shall be deemed equivalent to ­writing).18 Please note, however, that paragraphs 2, 3,

16 However, Art 6(2) of the Rome III Regulation provides: ‘Nevertheless, a spouse, in order to establish that he did not consent, may rely upon the law of the country in which he has his habitual residence at the time the court is seised if it appears from the circumstances that it would not be reasonable to determine the effect of his conduct in accordance with the law specified in paragraph 1.’ 17 This part is optional and can be inserted into the Choice-of-law Clause if the parties intend to clarify that said clause does not cover maintenance obligations and/or property consequences of the marriage. 18 Since Art 7 expressly provides that the agreement must be signed by the parties also through means of electronic communication, it might be inferred that electronic signature is required, under Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic ­identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/ EC [2014] OJ L 257/73. On support of necessity of digital signature in context of the Succession Regulation see A Davì, A Zanobetti, Il nuovo diritto internazionale privato europeo delle successioni (Giappichelli, Torino, 2014) 204; A Bonomi, R Di Iorio, ‘Accordi di scelta del foro’ in A Bonomi, P Wautelet (eds), Il Regolamento europeo sulle successioni: Commentario al Reg. UE 650/2012 in vigore dal 17 agosto 2015

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and 4 of Article 7 of the Rome III Regulation specify further requirements to be fulfilled for the choice-of-law agreement to be formally valid. Paragraph 2 provides that if the law of the participating Member State in which the two spouses have their habitual residence at the time the agreement is concluded lays down additional formal requirements for this type of agreement, those requirements shall apply. Paragraph 3 then states that if the spouses are habitually resident in different participating Member States at the time the agreement is concluded and the laws of those states provide for different formal requirements, the agreement shall be formally valid if it satisfies the requirements of either of those laws. Finally, according to paragraph 4, if only one of the spouses is habitually ­resident in a participating Member State at the time the agreement is concluded and that state lays down additional formal requirements for this type of agreement, only those requirements shall apply. It is generally accepted that the agreement may be executed in two counterparts.

C.  Maintenance Regulation – Choice-of-Court in Maintenance Matters Article  4 of the Maintenance Regulation19 provides for the possibility to designate a court or courts of a Member State in proceedings relating to maintenance obligations. Choice-of-court agreements in disputes relating to maintenance obligations towards a child under the age of 18 are not allowed.

(­Giuffrè, 2015) 123; cf F  Odersky, ‘Article  5: Choice-of-Court Agreement’ in U Bergquist, D Damascelli, R Frimston et al (eds), EU Regulation on Succession and Wills: Commentary (Otto Schmidt, 2015) 72–73; H Pamboukis, EU Succession Regulation No 650/2012: A Commentary (Hart Publishing, 2017) 75, where according to the author it is not sufficient if the document is signed, scanned and transmitted. Moreover, with a progressive development of new technologies, namely distributed ledger technologies, the choice-oflaw agreements could be concluded on the blockchains. However, the necessity of the signature in virtue of Art 7 must be ensured. This might be problematic mainly as to public blockchains where the identification of the parties is provided through their tokens. The identification of the parties could be assured, for example, by the notaries as the nodes on private blockchains, or the hybrid public-private elechains could be established (see Off-Chains, where the notaries could certify the correspondence between virtual registration and ­physical reality – a platform through which the notaries could provide services for holders of cryptocurrencies and tokens based on public blockchains after identifying the users themselves, at biblioteca.fondazionenotariato.it/art/innovazione-tecnologica-nuove-frontiere-della-funzione-notarile.html). 19 The Maintenance Regulation applies only to proceedings instituted, to court settlements approved or concluded, and to authentic instruments established after 18 June 2011, except for Croatia where it applies on or after 1 July 2013. It means that it is not required that the choice-of-court agreement was concluded on or after that 18 June 2011, it is sufficient that the Member State court is seised with the dispute concerning Art 4 of the Maintenance Regulation at the time the Maintenance Regulation has become applicable at that Member State.

Choice-of-Court and Choice-of-Law Clauses  637 The parties may agree on: a) the court or courts of a Member State in which one of the parties is habitually resident; or b) the court or courts of a Member State of which one of the parties has the nationality. In case of maintenance obligations between spouses or former spouses, the (former) spouses may designate as well: c) the court which has jurisdiction to settle their dispute in matrimonial matters; or d) the court or courts of the Member State where the spouses had their last common habitual residence for a period of at least one year.20 These conditions must be met at the time the choice-of-court agreement is concluded or at the time the court is seised.

Example No 1(a) Exclusive Jurisdiction Agreements – Maintenance for a child older than 18 years old (the main purpose of the example hereunder is to demonstrate the operation of the time factor in practice, ie operation of the conditions referred to in Article 4 of the Maintenance Regulation: (a) when the choice-of-court agreement is concluded, and (b) when the court is seised): In 1995 Susan (Finnish national) was born to Michael (Swedish national) and Sarah (Finnish national). At the time Susan was born, her parents lived in Sweden. In 2013, the relationship between Michael and Sarah ended, and they divorced. A maintenance agreement as to the substance, including a choice-ofcourt clause, was concluded between Susan (who is 18 years old) and Michael regarding any disputes which may arise between them in matters relating to child support. In 2015, Susan moved to Heidelberg to study at the University. Sarah helps Susan to pay for her accommodation in Germany, but Susan is not able to cover all her expenses and Michael refuses to pay for the previously agreed child support. Susan may sue Michael before the designated: –– Finnish court, if the choice-of-court agreement was concluded according to Article 4(1)(b) of the Maintenance Regulation (based on the nationality of Susan);

20 There might be some uncertainties, whether all jurisdictional grounds listed in Art 4 of the Maintenance Regulation, including (4)(1)(a) and (b), or only last two jurisdictional grounds based on Art (4)(1)(c) and (d), are applicable for spouses’ maintenance. A restrictive interpretation should be rejected, see M Abendroth, ‘Choice of Court in Matters Relating to Maintenance Obligations’ in P Beaumont, B Hess, L Walker, S Spancken (eds), The Recovery of Maintenance in the EU and Worldwide (Hart Publishing, 2014) 466–67; F Pocar, I Viarengo, ‘Il Regolamento (CE) n. 4/2009 in materia di obbligazioni alimentari’ (2009) RDIPP 814.

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–– Swedish court, if the choice-of-court agreement was concluded a) according to Article  4(1)(a) of the Maintenance Regulation (based on the habitual residence of Michael at the time the choice-of-court agreement was concluded and at the time the court is seised as well); b) according to Article  4(1)(a) of the Maintenance Regulation (based on the habitual residence of Susan at the time the choice-of-court agreement was concluded); c) according to Article 4(1)(b) of the Maintenance Regulation (based on the nationality of Michael); If Susan and Michael were to opt for the Swedish court as the court of Susan’s h ­ abitual residence at the time the choice-of-court agreement was concluded, Susan’s subsequent relocation does not interfere with the Swedish court’s jurisdiction. –– German court if the choice-of-court agreement was concluded according to Article  4(1)(a) of the Maintenance Regulation (based on the habitual ­residence of Susan at the time the court is seised). Example No 1(b): Exclusive Jurisdiction Agreements – Maintenance between (former) spouses (the main purpose of this example is to demonstrate the ­operation of the time factor in practice, ie the operation of the conditions referred to in Article 4 of the Maintenance Regulation (i) when the choice-ofcourt agreement is concluded, and (ii) when the court is seised) A Czech couple, Eva and Adam, living in Hungary, got married in 2014 and concluded a choice-of-court agreement regarding any disputes which may arise between them in matters relating to maintenance obligations. In 2016, Adam moved to Austria and Eva moved back to the Czech Republic. She claims ­maintenance against Adam. Eva may sue Adam before designated: –– Czech court if the choice-of-court agreement was concluded a) according to Article  4(1)(a) of the Maintenance Regulation (based on the habitual residence of Eva at the time the court is seised); b) according to Article  4(1)(a) or Article  4(1)(b) of the Maintenance ­Regulation (based on the nationality of Eva and Adam); –– Austrian court if the choice-of-court agreement was concluded according to Article  4(1)(a) of the Maintenance Regulation (based on the habitual ­residence of Adam at the time the court is seised). –– Hungarian court if the choice-of-court agreement was concluded a) according to Article  4(1)(a) of the Maintenance Regulation (based on the habitual residence of Eva and Adam at the time the choice-of-court agreement is concluded);

Choice-of-Court and Choice-of-Law Clauses  639

b) according to Article 4(1)(c)(ii) of the Maintenance Regulation (based on the last common habitual residence of Eva and Adam for a period of at least one year at the time the court is seised). Model Clause No 1 – Exclusive Jurisdiction Clause [Full name and identification details of party A] and [Full name and ­identification details of party B] irrevocably agree that [Identification of a specific Member State court/Identification of the courts of a Member State]21 is/are to have exclusive jurisdiction to settle any disputes in matters relating to maintenance obligations which have arisen or may arise between them in accordance with Article  4 paragraph 1 litt. [___] of Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to ­maintenance obligations and no other court is to have jurisdiction. Date signed: [______________] Date signed: [______________] Signature of the party:[______________] Signature of the party: [______________] Example No 2: Non-Exclusive Jurisdiction Clause A Czech couple, Petra and Martin, living in Hungary, got married in 2010. They concluded a non-exclusive choice-of-court agreement in matters relating to maintenance obligations in favour of Hungarian courts, by means of which they

21 It is possible to designate specific court(s) in accordance with one of the jurisdictional ground given in Art 4(1) of the Maintenance Regulation if the condition is met at the time the choice of court agreement is concluded or at the time the court is seised such as ‘Czech courts’; or the parties may designate a court/courts more generally in accordance with one of the jurisdictional ground given in Art 4(1) of the Maintenance Regulation provided that the condition will be met at the time the choice of court agreement is concluded or at the time the court is seised or in other words, ‘habitual residence of party A at the time the court will be seised’. The latter agreement does not directly designate jurisdiction of specific court(s), on the contrary the competent court can be changed during the course of the time (see previous examples). This option does not have an impact on the validity of the choice-of-court agreement. In other words, this legislative choice promotes favor validitatis for the parties – when the parties designate a Member State court not listed in Art 4 of the Maintenance Regulation, the validity of the jurisdiction clause may be ‘cured’, if such Member State court later on coincides with one of those listed in Art 4. However, it seems advisable to specify the moment to which the jurisdiction clause makes reference, or the moment of the conclusion of the jurisdiction agreement or the moment of the institution of the proceedings. It is questionable whether the agreement conferring jurisdiction to a court, for example, of the habitual residence of the debtor without determination of the relevant point in time, would be considered valid taking into consideration the fact that the debtor meanwhile changed its habitual residence. On the other hand, when the parties agree on a specific court of a specific Member State in an early moment in the relationship (for example at the time of the marriage), the connecting factor listed in Art 4 of the Maintenance Regulation may have lost any link with that Member State at the time the court is seised. Such a jurisdiction clause will be valid, but it does not necessarily correspond anymore to the needs of (one of) the parties.

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agreed that they are not prevented from litigating in other courts according to Article 3 of the Maintenance Regulation. Such choice-of-court agreement aims at ensuring that the Hungarian courts will not be deprived of their jurisdiction even if the parties change their habitual residence. In 2016, Martin and Petra moved to Austria. Petra claims maintenance against Martin. Petra may sue Martin before the designated: –– Hungarian court on the basis of the non-exclusive jurisdiction clause concluded according to Article 4(1)(a) of the Maintenance Regulation (based on the habitual residence of Petra and Martin at the time the choice-of-court agreement was concluded). –– Austrian court according to Article 3(a) and (b) of the Maintenance Regulation (based on the habitual residence of Martin as a defendant and habitual residence of Petra as a creditor). Model Clause No 2: Non-Exclusive Jurisdiction Clause [Full name and identification details of party A] and the party [Full name and identification details of party B] irrevocably agree that [Identification of a specific Member State court/Identification of the courts of a Member State] is/ are to have non-exclusive jurisdiction to settle any disputes in matters ­relating to maintenance obligations which have arisen or may arise between them in accordance with Article  4 paragraph 1 litt. [___] of Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, ­recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations and no other court(s) is/are to have jurisdiction (‘Regulation EC No 4/2009’). Nothing shall affect the right of either party to take the proceedings in any other court of competent jurisdiction in accordance with Article 3 of Regulation EC No 4/2009. Date signed: [______________] Date signed: [______________] Signature of the party: [______________] Signature of the party: [______________] Note regarding Model Clause No 2: The exclusivity of the jurisdiction conferred by the agreement is determined by Article 4(1) of the Maintenance Regulation. However, the parties may agree otherwise, ie on a non-exclusive jurisdiction clause which does not prevent the possibility to seise different courts.22 Such a non-­exclusive

22 See also Case 23/78, Nikolaus Meeth v Glacetal [1978] ECLI:EU:C:1978:198 in the context of the Brussels Convention, where according to the CJEU when the parties designate one exclusive jurisdiction for each party and exclude all otherwise competent courts for each party, such jurisdiction must be classified as an exclusive choice-of-court agreement.

Choice-of-Court and Choice-of-Law Clauses  641

jurisdiction clause does not guarantee a same level of predictability of the forum in maintenance proceedings as exclusive jurisdiction clause. The non-exclusive jurisdiction clause furthers the jurisdiction of a court which, otherwise, would not have jurisdiction according to Article 3 of the Maintenance Regulation (ie, nationality of either party or habitual residence of either party at the time the agreement is concluded),when the parties subsequently change their nationality and/or habitual residence. On the other hand, this Model Clause would be applicable only between the Member States, and third states would be obliged to consider the efficacy of the derogation under their own PIL rules. Example No 3: Asymmetrical Optional Jurisdiction Clause Carolina, a Portuguese national, and Samuel, a Finnish national, got married in 2010 and live in Germany. When they married, Samuel already lived in Germany, whereas Carolina moved to Germany in order to stay with Samuel. As a consequence, unfortunately, Carolina lost her job and she became unable to support her own living costs (she became more financially disadvantaged than Samuel). Moreover, Carolina missed her family, friends, her job and her home (she became psychologically weaker than Samuel since he considered Germany his second home). Therefore, Samuel wished her to feel comfortable, and to know that she can rely on a jurisdiction with which she is familiar. Thus, they concluded an asymmetrical exclusive choice-of-court agreement providing for the exclusiveness of Portuguese courts’ jurisdiction in case that Samuel claims maintenance against Carolina (through a negative declaratory action) according to Article  4(1)(b) of the Maintenance Regulation, whilst Carolina has the right to bring maintenance claim against Samuel in Portuguese courts according to Article 4(1)(b) or in any other court according to Article 3 of Maintenance Regulation. Model Clause No 3: Asymmetrical Optional Jurisdiction Clause [Full name and identification details of ‘weaker party’ A] and [Full name and identification details of ‘stronger party’ B] irrevocably agree that [Identification of a specific Member State court/Identification of the courts of a Member State] is/are to have exclusive jurisdiction to settle any disputes in matters relating to maintenance obligations which have arisen or may arise between them in accordance with Article 4 paragraph 1 litt. [litt. a) or b)] of Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations (‘Regulation EC No 4/2009’).

642  Francesca Clara Villata and Lenka Válková

For the benefit of [Full name of ‘weaker party’ A], [Full name of ‘weaker party’ A] nonetheless reserves the right to commence proceedings against [Full name of ‘stronger party’ B] before any other court with jurisdiction in accordance with Article 3 of Regulation EC No 4/2009. Date signed: [______________] Date signed: [______________] Signature of the party: [______________] Signature of the party: [______________] Note regarding Model Clause No 3: The exclusivity of the jurisdiction conferred by the agreement is determined in Article 4(1) of the Maintenance Regulation. However, the parties may agree otherwise. The optional asymmetrical jurisdictional clause binds one party to a particular jurisdiction but gives to the other party an option to commence proceedings either before the designated jurisdiction or before any other competent court. Notwithstanding certain decisions rendered by the courts of the Member States denying the validity of unilateral asymmetric clauses,23 the parties might be allowed to conclude asymmetric optional

23 Although there is no relevant case law regarding optional asymmetric clauses, the considerations assumed in the case-law relating to the Brussels I Regulation, or Brussels Ia Regulation should be considered since Art 23 of the Brussels I Regulation or Art 25 of the Brussels Ia Regulation provides: ‘Such jurisdiction shall be exclusive unless the parties have agreed otherwise’. See eg, French case-law, Mme X v Société Banque Privé Edmond de Rothschild 13 (Case No. 11-26022), where the Cour de Cassation was asked to consider the validity of clause where only one of the parties was obliged to bring its case in a specific court and the other party had right to select any other court of competent jurisdiction. The Cour de Cassation decided that the clause was ‘potestative’ in nature (French concept of ‘potestativité’ implicitly refers to the substantive validity under the French law), for the sole benefit of one party, and therefore was contrary to the objectives and the finality of the prorogation of jurisdiction provided for in Art 23 of the Brussels I Regulation. The Cour de Cassation followed its approach in its decision of in Case ICH v Crédit Suisse, No 13-27264, 25 March 2015, and invalidated the clause since the ‘objective factors’ were not defined. In the subsequent case of Apple v eBizcuss, 7 October 2015, No 14-16.898, the Cour de Cassation retained the clause as valid since it satisfied the ‘predictability requirement’ when the competent courts were clearly identified. Subsequently, in Case Diemme Enologia v Chambon, 11 May 2017, No 15-18758, the Cour de Cassation has validated an optional unilateral clause which gives an unlimited option to only one party. In the most recent judgment, the Cour de Cassation refused to give effect to the jurisdiction clause, since it did not contain any objective element sufficiently precise to identify the jurisdiction of the court which might be seised and it did not meet a high degree of predictability in virtue of Recital 11 and Art 23 of the Brussels I Regulation. In Bulgaria, the same approach as in Rothschild was upheld in the Bulgarian Supreme Court of Cassation, Commercial Chamber, 2 September 2011, judgment No. 71, in commercial case No. 1193/2010, which stated that unilateral asymmetric clauses may be interpreted as purporting a ‘potestative right’ and thus is not permitted under Bulgarian law (Case No 71 in commercial case No 1193/2010, 2 September 2011). In Italy, Cass, 8 March 2012 No 3624 in (2013) RDIPP 142, admitted a unilateral asymmetric clause and declined jurisdiction in the case concerning the choice-of-court agreement when one of the parties could seise the English courts, whereby the other party could seise the Italian court or any other court having jurisdiction according to the international conventions, see also C Villata ‘Rapporti sull’applicazione in Italia del regolamento (CE) n. 44/2001, del 22 dicembre 2000 («Bruxelles I»), e del regolamento (EU) n. 1215/2012, del 12 dicembre 2012 («Bruxelles I-bis»), concernenti la competenza giurisdizionale, il riconoscimento e l’esecuzione delle decisioni in material civile e commerciale, in S Bariatti, I Viarengo, F C Villata (eds), La giurisprudenza italiana sui ­regolamenti

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choice-of-court agreement in maintenance matters. The example above demonstrates the functionality of such clauses in certain circumstances. The rules provided in the Maintenance Regulation aim at protecting the maintenance creditor. Therefore, the asymmetrical optional clauses should be considered effective when they protect the maintenance creditor, which is financially and psychologically disadvantaged party, and not when they contravene the rationale of the Maintenance Regulation by giving advantage to the maintenance debtor, which is financially and psychologically stronger party.24 Formal requirements: Article 4 of the Maintenance Regulation prescribes that agreement shall be in writing (and a electronic communication providing for a durable record of the agreement shall be equivalent to writing).25 In any case, it seems advisable to record the agreement in a document signed by the parties involved. It is generally accepted that the agreement may also be executed in two counterparts.

D.  2007 Hague Maintenance Protocol – Choice-of-Law in Maintenance Matters Article 15 of the Maintenance Regulation26 provides that the law applicable to maintenance obligations shall be determined in accordance with 2007 Hague Maintenance europei in material civile e commercial e di famiglia (CEDAM, 2017), 61–63. According to the English case law, unilateral asymmetric clauses have been considered as enforceable and legitimate according to the Brussels Convention (Continental Bank NA v Aeakos Compania Naviera, [1994], 1 WLR 588, 594), 2007 Lugano Convention (Lornamead Acquisitions Ltd v Kaupthing Bank HF [2011] EWHC, 2611 (Comm)). The High Court in Commerzbank Aktiengesellschaft v Liquimar Tankers Management Inc [2017] EWHC 161 (Comm) upheld the validity of an asymmetric jurisdiction clause also under the Brussels Ia Regulation. 24 According to a recent German decision BGH, 14 January 2014, XII ZB 303/13, FamRZ 2014, 629, an asymmetrical agreement on the substantive regime of the matrimonial relationship (including maintenance) is null and void, if it creates an excessive imbalance between the spouses harming the weaker party. Such findings could also have an impact on the validity of an asymmetrical choice-of-court agreement concerning maintenance obligations, should the rule on the substantive validity of choice-of-court agreements embodied in Art 25(1) of the Brussels I Recast Regulation be extended to choice-of-court agreements falling under the Maintenance Regulation. 25 It should be briefly remembered that the submission by appearance is permitted according to Art 5 of the Maintenance Regulation. 26 Notwithstanding the date of the entry into force (1 August 2013) of the Hague Maintenance Protocol, the rules contained therein determine the law applicable to maintenance obligations claimed in a Member State relating to a period preceding the entry into force or the provisional application of the 2007 Hague Maintenance Protocol in the EU in situations where, under Maintenance Regulation, proceedings are instituted, court settlements are approved or concluded and authentic instruments are established as from 18 June 2011, the date of application of the Maintenance Regulation.

644  Francesca Clara Villata and Lenka Válková Protocol in the Member States bound by that instrument.27 According to Article  8 of the Hague Maintenance Protocol, the parties may at any time designate: a) the law of any state of which either party is a national at the time of the designation; b) the law of the state of the habitual residence of either party at the time of designation; c) the law designated by the parties as applicable, or the law in fact applied, to their property regime;28 or d) the law designated by the parties as applicable, or the law in fact applied, to their divorce or legal separation.29 However, the choice-of-law agreement based on Article  8 of the 2007 Hague Maintenance Protocol is excluded in respect of a person under the age of 18 years or of an adult who, by reason of an impairment or insufficiency of his or her personal faculties, is not in a position to protect his or her own interests.

Example: Maria, a Spanish national, and Tomas, a Slovak national, live in Portugal. They are going to be married and would like to conclude a choice-of-law agreement regarding any dispute relating to maintenance obligations between them. Maria and Tomas can designate: –– Spanish law according to Article  8(1)(a) of the 2007 Hague Maintenance Protocol (based on the nationality of Maria); –– Slovak law according to Article  8(1)(a) of the 2007 Hague Maintenance Protocol (based on the nationality of Tomas); –– Portuguese law according to Article 8(1)(b) of the 2007 Hague Maintenance Protocol (based on the habitual residence of Maria and Tomas at the time of the designation). Model Clause: [Full name and identification details of party A] and [Full name and ­identification details of party B] irrevocably agree that maintenance obligations between them are governed by and determined only in accordance with

27 Denmark and the United Kingdom are not bound by the Hague Maintenance Protocol. 28 On the Model Clause according to Art 8(1)(c) of 2007 Hague Maintenance Protocol see sections III.B.i. and III.B.iii. 29 On the Model Clause according to Art 8(1)(c) of 2007 Hague Maintenance Protocol see sections III.B.i. and III.B.iii.

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[Specification of designated law] pursuant to Article  8 paragraph 1 litt. [litt. a) or b)] of the Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations. The same law will also govern the existence and validity of this choice-of-law clause or of any term thereof.30 The parties hereby declare that they are fully informed and aware of the ­consequences of designation of [Specification of designated law].31 The parties hereby agree that this clause does not apply to property ­consequences of the [marriage/registered partnership] between them.32 Date signed: [______________] Date signed: [______________] Signature of the party: [______________] Signature of the party: [______________] Formal requirements: Article  8 of the 2007 Hague Maintenance Protocol prescribes that the agreement shall be in writing33 or recorded by means of any medium, the information therein contained be accessible so that it may be used for subsequent reference and shall be signed by both parties.34

E.  Matrimonial Property Regime Regulation The Matrimonial Property Regime Regulation applies only to legal proceedings ­instituted, to authentic instruments formally drawn up or registered and to court settlements approved or concluded on or after 29 January 2019. Chapter III dealing with the applicable law shall apply only to spouses who marry or who specify the law applicable to their matrimonial property regime after 29 January 2019. Matrimonial Property Regime Regulation applies in 18 Member States – Austria, Belgium, Bulgaria, Cyprus, the Czech Republic, Germany, Greece, Spain, France, Croatia, Italy, Luxembourg, Malta, the Netherlands, Portugal, Slovenia, Finland, and Sweden. 30 However, Art 8(4) of 2007 Hague Maintenance Protocol provides: ‘Notwithstanding the law designated by the parties in accordance with paragraph 1, the question of whether the creditor can renounce his or her right to maintenance shall be determined by the law of the state of the habitual residence of the creditor at the time of the designation.’ 31 Art 8(5) of the 2007 Hague Maintenance Protocol provides that unless at the time of the designation the parties were fully informed and aware of the consequences of their designation, the law designated by the parties shall not apply where the application of that law would lead to manifestly unfair or unreasonable consequences for any of the parties. As a consequence, the parties may expressly declare that they are fully informed and aware of the consequences of designation of such law. However a court could disregard the parties’ statement. 32 This sentence is optional and can be inserted into the clause if the parties intend to clarify that said clause does not cover property consequences of the marriage/registered partnership. 33 Only this part regarding formal requirements is relevant for the purpose of the Model Clause hereinabove. 34 It is generally accepted that the agreement may also be executed in two counterparts.

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i.  Choice of Court in Matrimonial Property Regime Matrimonial Property Regime Regulation allows two types of choice-of-court agreements. One type of choice-of-court agreements is covered by Article  5(2) and (3) of the Matrimonial Property Regime Regulation. The second type of choice-ofcourt agreements is determined by Article  7 of the Matrimonial Property Regime Regulation. First, according to Article 5 of the Matrimonial Property Regime Regulation, when a court of a Member State is seised as to divorce, legal separation or marriage annulment pursuant to the Brussels  IIa Regulation, the courts of that state shall have jurisdiction to rule on matters of the matrimonial property regime. However, where a court was seised: –– in accordance with the fifth indent of Article 3(1)(a) of the Brussels IIa Regulation (the applicant’s habitual residence, if the applicant had resided there for at least a year immediately before the application was made); –– in accordance with the sixth indent of Article 3(1)(a) of the Brussels IIa ­Regulation (the applicant’s habitual residence, if he or she had resided there for at least six months immediately before the application was made and is either a national of the Member State in question); –– pursuant to Article 5 of the Brussels IIa Regulation (in cases of conversion of legal separation into divorce); –– pursuant to Article 7 of the Brussels IIa Regulation (in cases of residual jurisdiction), jurisdiction in matters of matrimonial property regimes shall be subject to the spouses’ agreement according to Article 5(2) of the Matrimonial Property Regime Regulation. Therefore, since Article 5 provides for connection of proceedings relating to divorce or legal separation or marriage annulment and property regime (automatically or on the basis of spouses’ agreement), see section III.A.iv. Second, Article  7 of the Matrimonial Property Regime Regulation provides for a choice of court different from the first one determined by Article 5(2), which is activated only in cases falling under Article 6 of the Matrimonial Property Regime Regulation (where no court of a Member State has jurisdiction pursuant to Article 4 or 5 or in cases other than those provided for in those Articles). In particular, Article 7 may operate in three cases: (i) When it is not possible to establish jurisdiction of the Member State court under Article 5 of the Matrimonial Property Regime Regulation or under Article 4 of the Matrimonial Property Regime Regulation since jurisdiction lies in a third state or non-participating Member State. (ii) When the participating Member State court is seised to rule on an application for divorce, legal separation, or marriage annulment in accordance with the fifth or the sixth indent of Article 3(1)(a), Article 5 or Article 7 of the Brussels IIa Regulation and the parties fail to agree to such a Member State court under Article 5(2).

Choice-of-Court and Choice-of-Law Clauses  647 (iii) When the property regime represents the main issue of the proceedings, and thus, matters of the property regime are not linked to proceedings on succession or divorce, legal separation, or marriage annulment (for example, when the spouses or partners want to change the property regime of their marriage). In these cases, the parties may agree that the courts of the Member State whose law is applicable pursuant to Article 22 (based on the habitual residence of either spouse or nationality of either spouse at the time the agreement is concluded), or Article 26(1)(a) or (b) (based on the spouses’ first common habitual residence after the conclusion of the marriage or spouses’ common nationality at the time of the conclusion of the marriage), or the courts of the Member State of the conclusion of the marriage, will have jurisdiction. Therefore, since Article 7 provides for connection of ius and forum in certain cases, see section IV.D. There is only one instance in which the courts of a Member State will have jurisdiction regardless of a connection between the proceedings on divorce or legal separation or marriage annulment and property regime (Article 5 of the Matrimonial Property Regime Regulation) or of a coincidence between ius and forum (Article 7 of the Matrimonial Property Regime Regulation). This singular instance will be when the spouses designate the courts of the Member State where the marriage was concluded as the courts which have jurisdiction under Article 7 of the Matrimonial Property Regime Regulation. In this respect, see the Model Clause below.

Example: Two future spouses, Petra and Kostas, Greek nationals, live together in the Netherlands. They were married in June 2019 in Paris. Since Kostas has started new businesses, which might be risky in the future, Petra would like to request the court to modify their matrimonial property regime. Petra and Kostas can designate: –– a French court according to the last sentence of Article 7 of the Matrimonial Property Regime Regulation (based on the place of the conclusion of the marriage); –– a Dutch court according to Article 7 of the Matrimonial Property Regime Regulation which refers to Article  22(1)(a) of the Matrimonial Property Regime Regulation (based on the habitual residence Petra and Kostas) in case of designation of Dutch law according to Article  22(1)(a); please see section IV.D. concerning coincidence between ius and forum; –– a Greek court according to Article  7 of the Matrimonial Property Regime Regulation which refers to Article 22(1)(b) (based on the nationality of Petra and Kostas) in case of designation of Greek law according to Article 22(1)(b), see section IV.D. concerning coincidence between ius and forum.

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Model Clause: [Full name and identification details of party A] and [Full name and ­identification details of party B] irrevocably agree that [Identification of a specific Member State court/Identification of the courts of a Member State], as the court(s) of the Member State of the conclusion of the marriage, is/ are to have exclusive jurisdiction to rule on matters of their matrimonial property regime in accordance with Article  7 of Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes and no other court(s) is/are to have jurisdiction.35 Date signed: [______________] Date signed: [______________] Signature of the party: [______________] Signature of the party: [______________] Note regarding the designation of a court according to Article 7 of the Matrimonial Property Regime: This section deals only with choice of court under Article  7, ie, where no court of a Member State has jurisdiction pursuant to Article 4 (automatic connection with the succession proceedings) or Article 5 (automatic connection or connection on the basis of the choice-of-court with the divorce proceedings) or in cases other than those provided for in those Articles (eg, when the property regime represents the main issue of the proceedings). However, in case that, by virtue of Article  5(1) of the Matrimonial Property Regime Regulation, the proceedings concerning property regime is dealt simultaneously with divorce or legal separation or marriage annulment proceedings by a Member State court which is seised according to first four indents of Article 3(1)(a) and according to Article  3(1)(b) of the Brussels  IIa Regulation, the parties cannot derogate from such a court and designate other competent court according to Article  7 of the Matrimonial Property Regime Regulation. (Article  7 provides that only ‘In cases which are covered by Article 6 the parties may designate a court according to Article 7.’). As a consequence, choice-ofcourt agreement, which is not in conformity with Article 4 and 5, will be ineffective.36

35 The exclusivity of the jurisdiction conferred by the agreement is determined in Art 7(1) of the Matrimonial Property Regime Regulation. It is doubtful whether the parties may agree on non-exclusive jurisdiction clause. 36 MC De Lambertye-Autrand, ‘Article  7’ in S Corneloup, V Égéa, E Gallant, F Jault-Seseke (eds), Le droit européen des régimes patrimoniaux des couples. Commentaire des règlements 2016/1103 et 2016/1104 (Société de législation compare, 2018) 105–09; P Bruno, I regolamenti europei sei regimi patrimoniali dei coniugi delle unioni registrate (Milano, Giuffrè Francis Lefebvre, 2019) 90.

Choice-of-Court and Choice-of-Law Clauses  649

This Model Clause related to the Matrimonial Property Regime Regulation may be used only in the Member States which participate in the enhanced cooperation in the area of matters concerning matrimonial property regime. In other States, their relevance will be assessed through their domestic PIL rules. Formal requirements:37 Article 7(2) of the Matrimonial Property Regime Regulation provides that the agreement shall be expressed in writing and dated and signed by the parties38 (and an electronic communication providing for a durable record of the agreement shall be deemed equivalent to writing).39

ii.  Choice of Law in Matrimonial Property Regime Article  22 of the Matrimonial Property Regime Regulation regulates choice-of-law agreements. The spouses or future spouses may agree to designate: a) the law of the state where the spouses or future spouses, or one of them, are (is) habitually resident at the time the agreement is concluded; or b) the law of a state of nationality of either spouse or future spouse at the time the agreement is concluded.

37 It is generally accepted that the agreement may be executed in two counterparts. 38 Matrimonial Property Regime Regulation determines also in Art 8 ‘Jurisdiction based on the appearance of the defendant’, which is activated when defendant enters an appearance before a court of a Member State whose law is applicable pursuant to Art 22 or Art 26(1)(a) or (b). In such a case, the seised court has a duty to ensure that the defendant is informed of his right to contest the jurisdiction and of the consequences of entering or not entering an appearance. However, this rule does not apply in cases covered by Arts 4 or 5(1). 39 Since Art 7 expressly provides that the agreement must be signed by the parties also through means of electronic communication, it might be inferred that electronic signature is required, under Regulation on electronic identification and trust services for electronic transactions in the internal market. On support of necessity of digital signature in the context of Succession Regulation see Davì, Zanobetti (n 18) 204; Bonomi, Di Iorio (n 18) 137; Pamboukis (n 18) 123; contra Odersky (n 18) 75, where according to the author it is not sufficient for the document to be signed, scanned and transmitted. Moreover, with a progressive development of new technologies, namely distributed ledger technologies, the choice-of-court agreements could be concluded on the blockchains. However, the necessity of the signature by virtue of Art 7 must be ensured. This might be problematic mainly as to public blockchains where the identification of the parties is provided through their tokens. The identification of the parties could be assured, for example, by the notaries as the nodes on private blockchains, or the hybrid public-private blockchains could be established (see Off-Chains, where the notaries could certify the correspondence between virtual registration and physical reality – a platform through which the notaries could provide services for holders of cryptocurrencies and tokens based on public blockchains after identifying the users themselves, see https://biblioteca.fondazionenotariato.it/art/ innovazione-tecnologica-nuove-frontiere-della-funzione-notarile.html).

650  Francesca Clara Villata and Lenka Válková Example: The future spouses, Mirko and Adriana, are Croatian nationals. They will marry in June 2021 and they live together in Belgium. One month before their marriage, they decide to designate the law applicable to their future matrimonial property regime. They can designate: –– Belgian law according to Article  22(1)(a) of the Matrimonial Property Regime Regulation (based on the habitual residence of Mirko and Adriana); –– Croatian law according to Article  22(1)(b) of the Matrimonial Property Regime Regulation (based on the nationality of Mirko and Adriana). Model Clause: [Full name and identification details of party A]and [Full name and identification details of party B] irrevocably agree that matrimonial property regime between them is governed by and determined only in accordance with [Specification of designated law] law pursuant to Article 22 paragraph 1 litt. [___] of Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes.40 The same law will also govern the existence and validity of this choice-of-law clause or of any term thereof.41 The parties hereby agree that this clause does not apply to maintenance obligations between them.42 Date signed: [______________] Date signed: [______________] Signature of the party: [______________] Signature of the party: [______________]

40 However, according to Art 22(2) of the Matrimonial Property Regime Regulation, unless the spouses agree otherwise, a change of the law applicable to the matrimonial property regime made during the marriage shall have prospective effect only. Moreover, in this case, Art 22(3) of the Matrimonial Property Regime Regulation protects the third parties by providing that any retroactive change of the applicable law shall not adversely affect the rights of third parties deriving from that law. 41 However, Art 24(2) of the Matrimonial Property Regime Regulation provides: ‘Nevertheless, a spouse may, in order to establish that he did not consent, rely upon the law of the country in which he has his habitual residence at the time the court is seised if it appears from the circumstances that it would not be reasonable to determine the effect of his conduct in accordance with the law specified in paragraph 1.’ 42 This sentence is optional and can be inserted into the clause if the parties intend to clarify that said clause does not cover the maintenance obligations.

Choice-of-Court and Choice-of-Law Clauses  651 Note: This Model Clause related to the Matrimonial Property Regime Regulation may be used only in the Member States which participate in the enhanced ­cooperation in the area of matters concerning matrimonial property regime. In other states, their relevance will be assessed through their domestic PIL rules. Formal requirements: Article  25(1) of the Matrimonial Property Regime Regulation prescribes that the choice-of-law agreement shall be expressed in writing, dated and signed by both spouses (and an electronic communication providing for a durable record of the agreement shall be deemed equivalent to writing).43 Please note that Article 25(2) and (3) of the Matrimonial Property Regime Regulation specifies the further requirements to be fulfilled in order to consider the choice-of-law agreement formally valid. Paragraph 2 provides that, if the law of the Member State in which both spouses have their habitual residence at the time the agreement is concluded lays down additional formal requirements for matrimonial property agreements, those requirements shall apply. Moreover, if the spouses are habitually resident in different Member States at the time the agreement is concluded and the laws of those states provide for different formal requirements for matrimonial property agreements, the agreement shall be formally valid if it satisfies the requirements of either of those laws. Nevertheless, if only one of the spouses is habitually resident in a Member State at the time the agreement is concluded and that State lays down additional formal requirements for matrimonial property agreements, those requirements shall apply. Finally, paragraph 3 states that if the law applicable to the matrimonial property regime imposes additional formal requirements, those requirements shall apply. Depending upon the law governing its formal validity, the agreement may also be executed in two counterparts.

43 Since Art 25 expressly provides that the agreement must be signed by the parties also through means of electronic communication, it might be inferred that electronic signature is required, under Regulation on electronic identification and trust services for electronic transactions in the internal market. On support of necessity of digital signature in the context of Succession Regulation see Davì, Zanobetti (n 18) 204; Bonomi, Di Iorio (n 18) 137; Pamboukis (n 18) 123; contra Odersky (n 18) 75, where according to the author it is not sufficient for the document to be signed, scanned and transmitted. Moreover, with a progressive development of new technologies, namely distributed ledger technologies, the choice-of-law agreements could be concluded on the blockchains. However, the necessity of the signature by virtue of Art 25 must be ensured. This might be problematic mainly as to public blockchains where the identification of the parties is provided through their tokens. The identification of the parties could be assured, for example, by the notaries as the nodes on private blockchains, or the hybrid public-private blockchains could be established (see Off-Chains, where the notaries could certify the correspondence between virtual registration and physical reality – a platform through which the notaries could provide services for holders of cryptocurrencies and tokens based on public blockchains after identifying the users themselves, at https://biblioteca.fondazionenotariato.it/art/ innovazione-tecnologica-nuove-frontiere-della-funzione-notarile.html).

652  Francesca Clara Villata and Lenka Válková

F.  Regulation on the Property Consequences of Registered Partnerships The Regulation on the Property Consequences of Registered Partnerships applies only to legal proceedings instituted, to authentic instruments formally drawn up or registered and to court settlements approved or concluded on or after 29 January 2019. Chapter III, dealing with applicable law, applies only to partners who register their partnership or who specify the law applicable to the property consequences of their registered partnership after 29 January 2019. Said Regulation applies in 18 Member States – Austria, Belgium, Bulgaria, Cyprus, the Czech Republic, Germany, Greece, Spain, France, Croatia, Italy, Luxembourg, Malta, the Netherlands, Portugal, Slovenia, Finland, and Sweden.

i.  Choice of Court in Property Regime of Registered Partnerships In parallel with the Matrimonial Property Regime Regulation, Regulation on the Property Consequences of Registered Partnerships allows also for two types of choiceof-court agreements. One type of choice-of-court agreements is covered by Article 5 and the second is determined by Article 7. Although Article  4 of the Regulation on Property Consequences of Registered Partnership automatically allocates the jurisdiction of the property regime disputes to the Member State courts having jurisdiction over succession, in case of the dissolution or annulment of a registered partnership, in contrast with the Matrimonial Property Regime Regulation, the Regulation on the Property Consequences of Registered Partnerships provides in Article 5 that a court of a Member State seised to rule on the dissolution or annulment of a registered partnership will also rule on the property consequences of the registered partnership only if both partners so agree. Therefore, since Article  5 provides for connection of proceedings relating to dissolution of registered partnership and property regime (automatically or on the basis of spouses’ agreement) on the basis on choice-of-court agreement, see section III.A.iv. The second provision on choice of court is to be found in Article 7 which provides that in cases which are covered by Article  6 (where no court of a Member State has jurisdiction pursuant to Article 4 or 5 or in cases other than those provided for in those Articles), the parties may agree that other participating Member State courts provided in Article 7 have jurisdiction. It means that when the parties fail to agree on a Member State court under Article 5 since they prefer to opt for one of the Member State court specified in Article 7, in contrast with matrimonial property regime, nothing impedes the parties from concluding such choice-of-court agreements according to Article 7 of the Regulation on Property Consequences of Registered Partnerships. This choice-ofcourt agreement will be binding on the Member State courts without taking into the consideration which Member State court will be seised to rule on the dissolution or annulment of a registered partnership. In particular, parties may agree on courts of the participating Member State whose law is applicable pursuant to Article 22 (based on the habitual residence of either partner, nationality of either partner, the law of the state under whose law the registered partnership was created), Article 26(1) (the law of

Choice-of-Court and Choice-of-Law Clauses  653 the state under whose law the registered partnership was created), or the courts of the participating Member State under whose law the registered partnership was created, shall have exclusive jurisdiction to rule on the property consequences of their registered partnership. Therefore, since Article 7 provides for connection of ius and forum on the basis of a choice-of-court agreement in certain cases, please refer to section IV.D. The only instance in which the courts of a Member State will have jurisdiction regardless of a connection between the proceedings on the dissolution or annulment of a registered partnership and property regime (Article  5 of the Regulation on the Property Consequences of Registered Partnerships) or of a coincidence between ius and forum (Article 7 of the Regulation on the Property Consequences of Registered Partnerships) will be when the partners designate the courts of the Member State where the registered partnership was contracted as the courts having jurisdiction (Article 7 of the Regulation on the Property Consequences of Registered Partnerships). In this respect, see the Model Clause below.

Example: Daniel and Matthias are Austrian nationals. They live together in Spain. They are planning to enter into a registered partnership in Germany in July 2021. One month before their registration, they decide to conclude a choice-of-court agreement on future ­property consequences of their registered partnerships. Daniel and Matthias can agree to designate: –– a German court according to Article  7 of the Property Consequences of Registered Partnership (based on the Germany under whose law the registered partnership will be created); –– a Spanish court according to Article  7 of the Property Consequences of ­Registered Partnership which refers to Article 22(1)(a) if Daniel and Matthias designate ­Spanish law according to Article 22(1)(b), see section IV.D; –– an Austrian court according to Article  7 of the Property Consequences of ­Registered Partnership which refers to Article 22(1)(b) (based on the nationality of Daniel and Matthias) if Daniel and Matthias designate Austrian law according to Article 22(1)(b), see section IV.D. Model Clause: [Full name and identification details of party A] and [Full name and identification details of party B] irrevocably agree that [Identification of a specific Member State court/Identification of the courts of a Member State], under whose law the registered partnership was created, is/are to have exclusive jurisdiction to rule on the property consequences of their registered partnership

654  Francesca Clara Villata and Lenka Válková

in accordance with Article  7 paragraph 1 of Council Regulation (EU) 2016/1104 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of the property consequences of registered partnerships and no other court(s) is/are to have jurisdiction.44 Date signed: [______________] Date signed: [______________] Signature of the party:[______________] Signature of the party: [______________] Note: This Model Clause under the Regulation on the Property Consequences of Registered Partnerships may be used only in the Member States which participate in the enhanced cooperation in the area of matters concerning property regime. In other States, their relevance will be assessed through their domestic PIL rules. Formal requirements: Article  7(2) of the Regulation on the Property Consequences of Registered Partnerships provides that the agreement shall be expressed in writing and dated and signed by the parties45 (and an electronic communication providing for a durable record of the agreement shall be deemed equivalent to writing).46

44 The exclusivity of the jurisdiction conferred by the agreement not determined in Art 7(2) of the­ Regulation on the Property Consequences of Registered Partnerships. It is doubtful whether the parties may agree on a non-exclusive jurisdiction clause. 45 Regulation on the Property Consequences of Registered Partnerships determines also in Art 8 ‘Jurisdiction based on the appearance of the defendant’, which is activated when defendant enters an appearance before a court of a Member State whose law is applicable pursuant to Art 22 or Art 26(1). In such a case, a court has a duty to ensure that the defendant is informed of his right to contest the jurisdiction and of the consequences of entering or not entering an appearance. However, this rule does not apply in cases covered by Art 4. 46 Since Art 7 expressly provides that the agreement must be signed by the parties also through means of electronic communication, it might be inferred that electronic signature is required, under Regulation on electronic identification and trust services for electronic transactions in the internal market. On support of the necessity of digital signature in the context of Succession Regulation see Davì, Zanobetti (n 18) 204; Bonomi, Di Iorio (n 18) 137; Pamboukis (n 18) 123; contra Odersky (n 18) 75, where according to the author it is not sufficient for the document to be signed, scanned and transmitted. Moreover, with a progressive development of new technologies, namely distributed ledger technologies, the choice-of-court agreements could be concluded on the blockchains. However, the necessity of the signature by virtue of Art 7 must be ensured. This might be problematic mainly as to public blockchains where the identification of the parties is provided through their tokens. The identification of the parties could be assured, for example, by the notaries as the nodes on private blockchains, or the hybrid public-private blockchains could be established (see ­Off-Chains, where the notaries could certify the correspondence between virtual registration and physical reality – a platform through which the notaries could provide services for holders of cryptocurrencies and tokens based on public blockchains after identifying the users themselves, at https://biblioteca.fondazionenotariato.it/art/innovazione-tecnologica-nuove-frontiere-della-funzione-notarile.html).

Choice-of-Court and Choice-of-Law Clauses  655

ii.  Choice of Law in Property Regime of Registered Partnerships According to Article 22 of the Regulation on the Property Consequences of Registered Partnerships, the partners or future partners may agree to designate: a) the law of the state where the partners or future partners, or one of them, is habitually resident at the time the agreement is concluded; b) the law of a state of nationality of either partner or future partner at the time the agreement is concluded; or c) the law of the state under whose law the registered partnership was created.

Example: Massimo and Federico are Italian nationals. They are planning to enter into a registered partnership in Finland in 2021. They live together in Sweden. One month before their registration, they plan to enter into agreement on the law applicable to their future property regime. Massimo and Federico can designate: –– Swedish law according to Article 22(1)(a) of the Property Consequences of Registered Partnership (based on the habitual residence of both Massimo and Federico); –– Italian law according to Article  22(1)(b) of the Property Consequences of Registered Partnership (based on the nationality of both Massimo and Federico); –– Finnish law according to Article 22(1)(c) of the Property Consequences of Registered Partnership (Finnish law under whose law the registered partnership will be created). Model Clause: [Full name and identification details of party A] and [Full name and identification details of party B] irrevocably agree that the property consequences of a registered partnership between them are governed by and determined only in accordance with [Specification of designated law] pursuant to Article 22 paragraph 1 litt. [litt. a), b) or c)] of Council Regulation (EU) 2016/1104 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of the property consequences of registered partnerships.47 The same law will also

47 However, according to Art 22(2) of Regulation on the Property Consequences of Registered Partnerships, unless the partners agree otherwise, a change of the law applicable to the property consequences of their registered partnership made during the partnership shall have prospective effect only. Moreover, in this case,

656  Francesca Clara Villata and Lenka Válková

govern the existence and validity of this choice-of-law clause or of any term thereof.48 The parties hereby agree that this clause does not apply to maintenance obligations between them.49 Date signed: [______________] Date signed: [______________] Signature of the party: [______________] Signature of the party: [______________] Note: This Model Clause under the Regulation on the Property Consequences of Registered Partnerships may be used only in the Member States which participate in the enhanced cooperation in the area of matters concerning property regime. In other States, their relevance will be assessed through their domestic PIL rules. Formal requirements: Article  25(1) of the Regulation on the Property Consequences of Registered Partnerships prescribes that agreement shall be expressed in writing dated and signed by both spouses (and an electronic communication providing for a durable record of the agreement shall be deemed equivalent to writing).50 Please note

Art 22(3) of the Regulation on the Property Consequences of Registered Partnerships protects the third parties by providing that any retroactive change of the applicable law shall not adversely affect the rights of third parties deriving from that law. 48 However, Art 24(2) of the Regulation on the Property Consequences of Registered Partnerships provides: ‘Nevertheless, a partner may, in order to establish that he did not consent, rely upon the law of the country in which he has his habitual residence at the time the court is seised if it appears from the circumstances that it would not be reasonable to determine the effect of his conduct in accordance with the law specified in paragraph 1.’ 49 This sentence is optional and can be inserted into the clause if the parties intend to clarify that the clause does not cover the law applicable to maintenance obligations. 50 Since Art 25 expressly provides that the agreement must be signed by the parties also through means of electronic communication, it might be inferred that electronic signature is required, under Regulation on electronic identification and trust services for electronic transactions in the internal market. On support of necessity of digital signature in the context of Succession Regulation see Davì, Zanobetti (n 18) 204; Bonomi, Di Iorio (n 18) 137; Pamboukis (n 18) 123; contra Odersky (n 18) 75, where according to the author it is not sufficient for the document to be signed, scanned and transmitted. Moreover, with a progressive development of new technologies, namely distributed ledger technologies, the choice of law agreements could be concluded on the blockchains. However, the necessity of the signature by virtue of Art 25 must be ensured. This might be problematic mainly as to public blockchains where the identification of the parties is provided through their tokens. The identification of the parties could be assured, for example, by the notaries as the nodes on private blockchains, or the hybrid public-private blockchains could be established (see Off-Chains, where the notaries could certify the correspondence between virtual registration and physical reality – a platform through which the notaries could provide services for holders of cryptocurrencies and tokens based on public blockchains after identifying the users themselves, at https://biblioteca.fondazionenotariato.it/art/ innovazione-tecnologica-nuove-frontiere-della-funzione-notarile.html).

Choice-of-Court and Choice-of-Law Clauses  657

that Article 25(2) and (3) of the Regulation on the Property Consequences of Registered Partnerships specifies the further requirements to be fulfilled in order to consider the choice-of-law agreement formally valid. Paragraph 2 provides that if the law of the Member State in which both partners have their habitual residence at the time the agreement is concluded lays down additional formal requirements for partnership property agreements, those requirements shall apply. Moreover, if the partners are habitually resident in different Member States at the time the agreement is concluded and the laws of those States provide for different formal requirements for partnership property agreements, the agreement shall be formally valid if it satisfies the requirements of either of those laws. But those requirements shall apply if only one of the partners is habitually resident in a Member State at the time the agreement is concluded, and that State lays down additional formal requirements for partnership property agreements. Finally, paragraph 3 states that, if the law applicable to the property consequences of a registered partnership imposes additional formal requirements, those requirements shall apply. Depending upon the law governing its formal validity, the agreement may also be executed in two counterparts.

G.  Succession Regulation51 i.  Choice of Court in Succession Matters Article  5 of the Succession Regulation provides that, when the law chosen by the deceased to govern his succession pursuant to Article  22 is the law of a Member State (based on the nationality of the deceased),52 the parties concerned may agree

51 The Succession Regulation is applicable in 25 Member States as of 17 August 2015 except for UK, Ireland, and Denmark. The Succession Regulation applies to the succession of persons who die on or after 17 August 2015. Where the deceased had chosen the law applicable to his succession prior to 17 August 2015, that choice shall be valid if it meets the conditions laid down in Chapter III or if it is valid in application of the rules of private international law which were in force, at the time the choice was made, in the state in which the deceased had his habitual residence or in any of the states whose nationality he or she possessed. A disposition of property upon death made prior to 17 August 2015, shall be admissible and valid in substantive terms and as regards form if it meets the conditions laid down in Chapter III or if it is admissible and valid in substantive terms and as regards form in application of the rules of private international law which were in force, at the time the disposition was made, in the state in which the deceased had his habitual residence or in any of the states whose nationality he or she possessed or in the Member State of the authority dealing with the succession. If a disposition of property upon death 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. 52 Recitals 27 and 28 of the Succession Regulation refer to the choice-of-court agreements as a ‘mechanism’ designed to ensure that the Member State court applies their own law. Thus, it is evident that party autonomy in the Succession Regulation is limited and mainly aims at establishing the coincidence between ius and forum. Therefore, the valid professio iuris seems to be a precondition for a valid choice of court. Otherwise, the choiceof-court agreement itself would not meet the conditions prescribed in Art 5 of the Succession Regulation.

658  Francesca Clara Villata and Lenka Válková that a court of that Member State is to have exclusive jurisdiction to rule on any succession matter.53

Moreover, while the choice of law in accordance with Art 22 of the Succession Regulation may result in the designation of the law of a third state, the choice-of-court provision is not applicable if the de cuius chose the law of a third state. It means that where the deceased is a national of the third state, the choice-of-court agreement is not governed by the Succession Regulation. 53 European Commission, Proposal for a Regulation of the European Parliament and of the Council on jurisdiction, applicable law, recognition and enforcement of decisions and authentic instruments in matters of succession and the creation of a European Certificate of Succession, COM(2009)0154 final, 14 October 2009 only provided for a ‘referral to a court better placed to hear the case’ on request of the parties in case of previous valid choice-of-law, but no provision on choice-of-court was proposed. In 2011, it was proposed by the Presidency of the Council of the European Union to insert a new provision in Chapter II which would allow the parties to conclude a choice-of-court agreement in a situation where the deceased had chosen the law of his Member State of nationality, see Proposal for a Regulation of the European Parliament and of the Council on jurisdiction, applicable law, recognition and enforcement of decisions and authentic instruments in matters of succession and the creation of a European certificate of succession – Specific aspects to be examined further, 2009/0157 (COD), 6 May 2011. Afterwards, it was proposed that ‘heirs and legatees’ should be able to agree on jurisdiction where the deceased had chosen the law of his Member State of nationality, whereby the Working Party was invited to discuss to what extent all legatees (both those having direct rights in the succession and those having a claim against the heirs) should agree to the choice of court, see Presidency of the Council of the European Union, Proposal for a Regulation of the European Parliament and of the Council on jurisdiction, applicable law, recognition and enforcement of decisions and authentic instruments in matters of succession and the creation of a European Certificate of Succession, 2009/0157 (COD), 29 June 2011. Subsequently, it was proposed that ‘beneficiaries’ should agree on jurisdiction, whereby no general definition was given of the term ‘beneficiaries’ since the law applicable to the succession should determine in each case who the beneficiaries are (in accordance with the Succession Regulation), see Presidency of the Council of the European Union, Proposal for a Regulation of the European Parliament and of the Council on jurisdiction, applicable law, recognition and enforcement of decisions and authentic instruments in matters of succession and the creation of a European Certificate of Succession, 2009/0157 (COD), 10 October 2011. Afterwards, it was proposed by the Italian delegation that ‘interested parties’ could agree on jurisdiction, whereby it was specified that such terms do not cover all the beneficiaries (heirs and legatee), but only the parties among which there is a dispute (they may be all the beneficiaries or not, depending on the case) since there was no need to require the agreement of all the beneficiaries, if the dispute was only between some of them (eg, in case of invalidity of a legacy), see Proposal for a Regulation of the European Parliament and of the Council on jurisdiction, applicable law, recognition and enforcement of decisions and authentic instruments in matters of succession and the creation of a European Certificate of Succession – Proposal by the Italian delegation concerning Option 2 of document 15133/11, 2009/0157 (COD), 21 October 2011 Afterwards, the current concept of ‘the parties concerned’ was proposed and its scope had to be indicated in a Recital, see Proposal for a Regulation of the European Parliament and of the Council on jurisdiction, applicable law, recognition and enforcement of decisions and authentic instruments in matters of succession and the creation of a European Certificate of Succession – General agreement on the text of the Articles, 2009/0157 (COD), 1 December 2011. The Succession Regulation, however, still lacks any definition of the notion. Therefore, the problem lies in the difficulty of identifying all parties concerned. The heirs and the legatees should probably be included under the term, which is evident from the numerous references in the Succession Regulation (see Recital No 32). The difficulties with the identification of the parties may be evident mainly in the non-contentious proceedings, such a proceeding directed to determine the heirs. Moreover, the positions of the specific group of subjects in the succession proceedings, such as the creditors, remains controversial. On the notion of the ‘parties concerned’ see Odersky (n 18) 72–73; Pamboukis (n 18) 124; I Queirolo, ‘General Rules on Jurisdiction’ in S Bariatti, I Viarengo, C Villata (eds), Final Study: Towards the entry into force of the succession regulation: building future uniformity upon past divergences (2016) at eventi.nservizi.it/evento. asp?evID=85, 359; Bonomi, Di Iorio (n 18) 137.

Choice-of-Court and Choice-of-Law Clauses  659 Example: Xavier, a deceased national of Malta, was habitually resident in Germany at the time of his death. In 2016, he chose the law of Malta to govern his succession as a whole in accordance with Article 22(1) of the Succession Regulation. His heirs − his sons Ryan and Mikal, nationals of Malta and habitually resident in Malta − would like to know which courts they may designate. According to Article  5 of the Succession Regulation, they may only designate the courts of Malta. Absent such choice, German courts have jurisdiction according to Article 4 of the Succession Regulation, since Xavier was habitually resident in Germany at the time of death (if courts of Malta do not have jurisdiction according to Article 6, 7 and 9 of the Succession Regulation). Model Clause: [Full name and identification details of party A] and [Full name and identification details of party B] irrevocably agree that [Identification of a specific Member State court/Identification of the courts of a Member State] is/are to have exclusive jurisdiction to rule on any succession matter in accordance with Article 5 paragraph 1 of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession (‘Regulation (EU) No 650/2012’) and no other court(s) is/are to have jurisdiction54 since on [Date] the deceased, [Full name and identification details of the deceased], chose the law of [Specification of the law designated by the deceased], whose nationality [he/she] possessed. as the law to govern [his/her] succession as a whole according to Article 22 of Regulation (EU) No 650/2012.55 Date signed: [______________] Date signed: [______________] Signature of the party: [______________] Signature of the party: [______________]

54 The exclusivity of the jurisdiction conferred by the agreement is determined in Art 5(1) of the Succession Regulation. It is doubtful whether the parties may agree on a non-exclusive jurisdiction clause. 55 It is questionable whether the manifestation of the agreement in writing requires the mutual agreement of the parties concerned, or whether the declaration of the intent of each party on a separate document, which is dated and signed, satisfies the formal requirements prescribed in Art 5(2) of the Succession Regulation. On the approach excluding unilateral declaration see Bonomi, Di Iorio (n 18) 137; on the opposite approach affirming that the unilateral declaration meets the requirements as to form, see Odersky (n 18) 75.

660  Francesca Clara Villata and Lenka Válková Formal requirements: Article 5(2) of the Succession Regulation provides that the agreement shall be expressed in writing and dated and signed by the parties56 (and an electronic communication providing for a durable record of the agreement shall be deemed equivalent to writing).57

ii.  Choice of Law in Succession Matters a.  Choice of Law – Succession as a Whole Article 22 of the Succession Regulation states that a person may choose, as the law to govern his or her succession as a whole, the law of the state whose nationality he or she possesses at the time of making the choice or at the time of death (in case of multiple nationalities, a person may choose the law of any of the states whose nationality he or she possesses at the time of making the choice or at the time of death).

Example: Lukas, German and Austrian dual citizen, is habitually resident in Italy. He wishes to know which law he can choose to govern his succession as a whole.

56 It is generally accepted that the agreement may be executed in two counterparts. Jurisdiction may also be attributed to the court also after the institution of the proceedings according to Art 7(c) of the Succession Regulation. This rule is not based on the choice-of-court agreement within the meaning of Art 5 of the Succession Regulation, but on the fact that a Member State court, whose law was chosen by the deceased according to Art 22 of the Succession Regulation shall have jurisdiction if the parties to the proceedings have expressly accepted the jurisdiction of the court seised. Therefore, the last moment when it is possible to accept jurisdiction during the proceedings depends on the procedural law of the seised Member State court. On the other hand, this rule may be considered as obsolete since Art 5 of the Succession Regulation does not pose a limit regarding the moment of conclusion of the agreement. It is questionable whether such an agreement should respect the formal requirements in Art 5(2) of the Succession Regulation, or, whether may also be concluded orally at a hearing of the proceedings, or in other manners according to the procedural requirements of the seised Member State court, such as recorded in the minutes of the proceedings. 57 Since Art 5 expressly provides that the agreement must be signed by the parties also through means of electronic communication, it might be inferred that electronic signature is required, under Regulation on electronic identification and trust services for electronic transactions in the internal market, see Davì, Zanobetti (n 18) 204. In support of necessity of digital signature see: Bonomi, Di Iorio (n 18) 137; Pamboukis (n 18) 123; on the doubts whether it is not sufficient for the document to be signed, scanned and transmitted see Odersky (n 18) 75. Moreover, with a progressive development of new technologies, namely distributed ledger technologies, the choice of court agreements could be concluded on the blockchains. However, the necessity of the signature by virtue of Art 5 must be ensured. This might be problematic mainly as to public blockchains where the identification of the parties is provided through their tokens. The identification of the parties could be assured, for example, by the notaries as the nodes on private blockchains, or the hybrid public-private blockchains could be established (see Off-Chains, where the notaries could certify the correspondence between virtual registration and physical reality – a platform through which the notaries could provide services for holders of cryptocurrencies and tokens based on public blockchains after identifying the users themselves, at https://biblioteca.fondazionenotariato.it/art/innovazione-tecnologicanuove-frontiere-della-funzione-notarile.html).

Choice-of-Court and Choice-of-Law Clauses  661

Lukas can choose Austrian or German law according to Article 22(1) of the Succession Regulation (based on the nationalities of Lukas at the time of the choice or of death). Italian law cannot be chosen by Lukas. However, Italian law can be applied in accordance with Article 21 of the Succession Regulation absent a choice-of-law agreement and provided that Lukas is habitually resident in Italy at the time of his death. Model Clause: Choice-of-law as to succession as a whole according to Article 22 of the Succession Regulation I, [Full name and identification details], the undersigned, hereby declare that I choose as the law to govern my succession as a whole the law of [Specification of the designated law], whose nationality I possess, in accordance with Article 22 of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession. Date signed: [______________] Signature: [______________] Formal requirements: According to Article  22(2) of the Succession Regulation, the choice shall be made expressly in a declaration in the form of a disposition of property upon death58 or shall be demonstrated by the terms of such a disposition. Article 27 of the Succession Regulation governs formal validity of dispositions of property upon death made in writing and states that a disposition of property upon death made in writing shall be valid as regards form if its form complies with the law: (a) of the state in which the disposition was made or the agreement as to succession concluded; (b) of a state that the testator, or at least one of the persons whose succession involves an agreement as to succession, possessed, either at the time when the disposition was made or the agreement concluded, or at the time of death; (c) of a state in which the testator, or at least one of the persons whose succession involved an agreement as to succession had his domicile, either at the time when the disposition was made or the agreement concluded, or at the

58 Only this part regarding formal requirements is relevant for the purpose of the Model Clauses hereinabove.

662  Francesca Clara Villata and Lenka Válková

time of death; (d) of the state in which the testator or at least one of the persons whose succession involved an agreement as to succession had his habitual residence, either at the time when the disposition was made or the agreement concluded, or at the time of death; or (e) in so far as immovable property is concerned, of the state in which that property is located.

b.  Choice of Law – Disposition of Property upon Death According to Article 24(2) of the Succession Regulation, a person may choose as the law to govern his or her disposition of property upon death (regarding admissibility and substantive validity), the law which that person could have chosen in accordance with Article 22 of the Succession Regulation (ie the law of the state whose nationality he or she possesses at the time of making the choice or at the time of death). Nevertheless, although the law governing disposition of property upon death (regarding admissibility and substantive validity) may be designated, the remaining succession matters listed in Article  23 of the Succession Regulation (the causes, time and place of the opening of the succession; the determination of the beneficiaries, the determination of other succession rights, including the succession rights of the surviving spouse or partner; the capacity to inherit, etc) will be governed by lex successionis, as provided, respectively, in Article 21 or in Article 22 of the Succession Regulation (ie the law of habitual residence or the law of nationality).

Example: Thomas, a national of both France and Spain, is habitually resident in Portugal. He wishes to make a will (a disposition of property upon death other than a succession agreement) and would like to know which law he can choose to govern his disposition of property upon death (regarding admissibility and substantive validity of disposition of property upon death). Thomas can choose French or Spanish law to govern admissibility and substantive validity of disposition of property upon death according to Article  24(2) in connection with Article  22(1) of the Succession Regulation (based on the nationalities of Thomas at the time of the choice or of death). Model Clause: Choice of law regarding disposition of property upon death according to Article 24(2) of the Succession Regulation I, [Full name and identification details], the undersigned, hereby declare that I choose as the law to govern my disposition of property upon death as regards its admissibility and substantive validity, the law of [Specification of the

Choice-of-Court and Choice-of-Law Clauses  663

designated law], whose nationality I possess, in accordance with Article  24 paragraph 2 of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on ­jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of ­authentic instruments in matters of succession and on the creation of a European Certificate of Succession. Date signed: [______________] Signature: [______________] Note: The law chosen as to the disposition of property upon death governs only the admissibility and substantive validity. The remaining issues are governed by lex successionis, ie by the law of habitual residence (Article 21) or in case of a choice of law agreement, by the law of nationality (Article 22). As a consequence, if a person is interested in ensuring that the same law which he or she had chosen for the disposition of property upon death or the agreement as to succession (law of his or her nationality) will govern also all other succession issues (Article 23), he or she must expressly choose such law according to Article  22 of the Succession Regulation (see section II.G.ii.d. below). On the formal requirements, see section II.G.ii.a. above.

c.  Choice-of-Law Agreements as to Succession According to Article 25(3) of the Succession Regulation, the parties may choose as the law to govern their agreement as to succession (regarding only admissibility, substantive validity, binding effects between the parties, and conditions for its dissolution), the law which the person or one of the persons whose estate is involved could have chosen in accordance with Article 22 of the Succession Regulation (the law of the state whose nationality he or she possesses at the time of making the choice or at the time of death). However, although the law governing an agreement as to succession (regarding admissibility, substantive validity, binding effects between the parties, conditions for its dissolution) may be designated, the remaining succession matters listed in Article 23 of the Succession Regulation (the causes, time and place of the opening of the succession; the determination of the beneficiaries, the determination of other succession rights, including the succession rights of the surviving spouse or partner; the capacity to inherit, etc) will be governed by lex successionis. These matters are provided, respectively, in Article 21 or in Article 22 of the Succession Regulation (ie the law of habitual residence or the law of nationality).

664  Francesca Clara Villata and Lenka Válková Example: Spouses David (national of Austria) and Natalia (national of Germany) are habitually resident in Italy. They wish to sign a mutual will, assigning each other as sole heirs (an agreement as to succession). They would like to know which law they may choose to govern their agreement as to succession (regarding admissibility, substantive validity, binding effects between the parties, conditions for its dissolution). David and Natalia can choose Austrian or German law to govern their agreement as to succession (regarding admissibility, substantive validity, binding effects between the parties, conditions for its dissolution) according to Article 25(3) in connection with Article 22 of the Succession Regulation (based on the nationality of David or Natalia at the time of the choice). Model Clause: Choice of law regarding agreement as to succession according to Article 25(3) of the Succession Regulation [Full name and identification details of party A] and [Full name and identification details of party B] hereby agree to choose as the law to govern their agreement as to succession, as regards its admissibility, its substantive validity and its binding effects between them, including conditions for its dissolution, the law of [Specification of the designated law], whose nationality [Full name and identification details of party A or party B] possesses, in accordance with Article 25 paragraph 3 and of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession. Date signed: [______________] Date signed: [______________] Signature of the party: [______________] Signature of the party: [______________] Note: The parties may choose as the law to govern their agreement as to succession (as regards admissibility, substantive validity and binding effects between the parties, including conditions for its dissolution), the law of nationality of one of the persons whose estate is involved. In practice, it means that in case of different nationalities of the parties to the agreement as to succession (‘agreements as to succession of several persons’), said parties must choose the law of nationality of only one of them. Thus, it may happen that the aspects of the succession falling under Article  25 of the Succession Regulation are governed by a law with no connection with one of the persons whose succession is concerned

Choice-of-Court and Choice-of-Law Clauses  665

The law chosen as applicable to the agreement as to succession governs only the admissibility and substantive validity, binding effects between the parties and conditions for its dissolution. The remaining issues are governed by lex successionis, ie the law of habitual residence (Article 21) or, in case of a choice of law, the law of nationality (Article 22). As a consequence, if a person is interested in ensuring that the same law which he or she chose for the disposition of property upon death or the agreement as to succession (law of his or her nationality) will also govern all other succession issues (Article 23), he or she must expressly choose such law according to Article 22 of the Succession Regulation (see section II.G.ii.e. below). On the formal requirements, see section II.G.ii.a. above.

d.  Choice of Law – Succession as a Whole and Disposition of Property upon Death As stated in section II.G.ii.b. above, although a person chooses the law applicable to the admissibility and substantive validity of the disposition of property upon death by virtue of Article 24(2) of the Succession Regulation, the remaining issues as listed in Article 23 of the Succession Regulation (the causes, time and place of the opening of the succession; the determination of the beneficiaries, the determination of other succession rights, including the succession rights of the surviving spouse or partner; the capacity to inherit, etc) are governed by lex successionis, ie the law of the deceased’section habitual residence according to Article 21 of the Succession Regulation or the law of his or her nationality according to Article  22 of the Succession Regulation. However, a person may choose the law applicable to both his or her succession as a whole according to Article  22 of the Succession Regulation and the admissibility and substantive validity of his or her disposition of property upon death according to Article 24(2) of the Succession Regulation.

Example: Thomas, a national of France and Spain, is habitually resident in Portugal. He wishes to make a will (disposition of property upon death other than an agreement as to succession) and he would like to know which law can be chosen to govern his disposition of property upon death (regarding admissibility and substantive validity of disposition of property upon death) and he wishes that the same law will be applicable to his succession as a whole. Thomas can choose French or Spanish law to govern his succession as a whole according to Article 22 of the Succession Regulation and his disposition

666  Francesca Clara Villata and Lenka Válková

of property upon death (regarding admissibility and substantive validity of ­disposition of property upon death) according to Article  24(2) in connection with Article 22 of the Succession Regulation and (based on the nationalities of Thomas at the time of the choice). Model Clause No 4 – choice of law regarding disposition of property upon death according to Article  24(2) and choice of law according to Article 22 of the Succession Regulation I, [Full name and identification details], the undersigned, hereby declare that I choose as the law to govern my succession as a whole and my disposition of property upon death as regards its admissibility and substantive validity, the law of [Specification of the designated law], whose nationality I possess, in accordance with Article  22 and Article  24 paragraph 2 of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession. Date signed: [______________] Signature: [______________] On the formal requirements, see section II.G.ii.a. above.

e.  Choice of Law – Succession as a Whole and Agreements as to Succession As stated in section II.G.ii.c. above, although the parties choose the law to govern admissibility, substantive validity, binding effects between the parties, conditions for its dissolution of their agreement as to succession by virtue of Article 25(3) of the Succession Regulation, the remaining issues as listed in Article 23 of the Succession Regulation (the causes, time and place of the opening of the succession; the determination of the beneficiaries, the determination of other succession rights, including the succession rights of the surviving spouse or partner; the capacity to inherit, etc.) are governed by lex successionis, ie the law of the deceased’s habitual residence according to Article 21 of the Succession Regulation or the law of his or her nationality according to Article 22 of the Succession Regulation. However, the parties may choose the law applicable to both their respective successions as a whole according to Article  22 of the Succession Regulation and to the admissibility and substantive validity, binding effects between the parties, conditions for dissolution of an agreement as to succession between themselves according to Article  25(3) of the Succession Regulation.

Choice-of-Court and Choice-of-Law Clauses  667 Example: Spouses David and Natalia (nationals of Germany) are habitually resident in Italy. They wish to sign a mutual will, assigning each other as sole heirs (an agreement as to succession). They would like to know which law they may choose to govern their agreement as to succession (regarding admissibility, substantive validity, binding effects between the parties, conditions for its dissolution) and they wish that the same law will also be applicable to their succession as a whole. David and Natalia can choose German law to govern their respective successions as a whole according to Article 22 of the Succession Regulation and their agreement as to succession (regarding admissibility, substantive validity, binding effects between the parties, conditions for its dissolution) according to Article 25(3) in connection with Article 22 of the Succession Regulation (based on the nationality of David or Natalia at the time of the choice). Model Clause No 1 must be completed with Model Clause No 2 or Model Clause No 3 can be applied instead of the Model Clauses No 1 and No 2: Model Clause No 1 a) Choice of law as to succession as a whole of party A according to Article 22 of the Succession Regulation I, [Full name and identification details], the undersigned, hereby declare that I choose as the law to govern my succession as a whole the law of [Specification of the designated law], whose nationality I possess, in accordance with Article 22 of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession. Date signed: [______________] Signature: [______________] and b) Choice of law as to succession as a whole of party B according to Article 22 of the Succession Regulation I, [Full name and identification details], the undersigned, hereby declare that I choose as the law to govern my succession as a whole the law of [Specification of the designated law], whose nationality I possess, in accordance with Article  22 of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition

668  Francesca Clara Villata and Lenka Válková

an enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession. Date signed: [______________] Signature: [______________] And Model Clause No 2 Choice of law regarding an agreement as to succession according to Article 25(3) of the Succession Regulation [Full name and identification details of party A] and [Full name and identification details of party B] hereby choose as the law to govern their agreement as to succession, as regards its admissibility, its substantive validity and its binding effects between them, including conditions for its dissolution, the law of [Specification of the designated law], whose nationality the parties herein possess, in accordance with Article 25 paragraph 3 of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession. Date signed: [______________] Date signed: [______________] Signature of the party: [______________] Signature of the party: [______________] or Model Clause No 3 Choice of law regarding an agreement as to succession according to Article 25(3) and choice of law as to succession as a whole according to Article 22 of the Succession Regulation [Full name and identification details of spouse A/partner A], the undersigned, hereby autonomously declare to choose as the law to govern my succession as a whole and the agreement as to succession, as regards its admissibility, its substantive validity and its binding effects, including conditions for its ­dissolution, and

Choice-of-Court and Choice-of-Law Clauses  669

[Full name and identification details of spouse B/partner B], the ­undersigned, hereby autonomously declare to choose as the law to govern my succession as a whole and the agreement as to succession, as regards its ­admissibility, its substantive validity and its binding effects between them, including conditions for its dissolution, the law of [Specification of the designated law],whose nationality we possess, in accordance with Article 22 and Article 25 paragraph 3 of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession. Date signed: [______________] Date signed: [______________] Signature: [______________] Signature: [______________] Note: The application of a single law to a succession as a whole and to an agreement as to succession, as regards its admissibility, substantive validity and binding effects between several persons (‘agreements as to succession of several persons’) through choice of law under Articles 22 and 25(3) of the Succession Regulation can be reached only if the parties to the agreement as to succession are nationals of the same state. Formal requirements Article 22(3) of the Succession Regulation states that the choice shall be made expressly in a declaration in the form of a disposition of property upon death or shall be demonstrated by the terms of such a disposition. The choice of the law applicable to the succession a whole can be made by through a declaration of each deceased in a separate document as demonstrated in Model Clause No 1a) and 1b) above. However, when the parties have the same nationalities, the possibility of a joint (but still autonomous) choice of the law applicable to the succession as a whole and an agreement as to succession by both parties in a single declaration is not precluded if its form complies with the law listed in Article  27 of the Succession Regulation (on the formal requirements see section II.G.ii.a. above).

670  Francesca Clara Villata and Lenka Válková

III.  Proceedings Dealing with Two or More Matters A.  Jurisdictional Rules i.  Divorce or Legal Separation or Marriage Annulment and Parental Responsibility Brussels  IIa Regulation59 does not provide for a choice-of-court rule in proceedings relating to divorce or legal separation or marriage annulment. However, the unification of the proceedings relating to divorce (or legal separation or marriage annulment) and parental responsibility is possible through the application of Article 12(1) of the Brussels IIa Regulation if all the conditions laid down below are satisfied: a) the agreed Member court must have jurisdiction for divorce, legal separation, or marriage annulment according to Article 3 of the Brussels IIa Regulation;60 b) at least one of the spouses has parental responsibility in relation to the child and the jurisdiction of the courts has been accepted expressly or otherwise in an ­unequivocal manner by the spouses and by the holders of parental responsibility at the time the court is seised;61

59 According to Art 64 of the Brussels  IIa Regulation, the provisions shall apply only to legal proceedings instituted, to documents formally drawn up or registered as authentic instruments and to agreements concluded between the parties after 1 March 2005, in 24 Member States, on or after 1 January 2007, in Bulgaria and Romania, and on or after 1 July 2013 in Croatia, except for Denmark where the special status applies. It must be pointed out as to application ratione temporis that Art 64 refers to ‘agreements concluded between the parties’ under Art 12 of the Brussels IIa Regulation, which leads to applicability of the Brussels IIa Regulation when the parties enter into the agreement under Art 12 of the Brussels IIa Regulation after the date of its application for that Member State (without taking into the consideration the date of the institution of the proceedings) see P Mankowski, ‘Article 64’ in U Magnus, P Mankowski (eds), Brussels IIbis Regulation: 2017 (European Commentaries on Private International Law, Otto Schmidt, Sellier European Law Publishers, 2017) 477. This rule differs from the Maintenance Regulation, which requires only the Member State court to be seised with the dispute concerning Art 4 of the Brussels Ia Regulation at the time the Maintenance Regulation has become applicable in that Member State. 60 The Brussels IIter Regulation modified Art 12 of the Brussels IIa Regulation in order to unify the rules on prorogation of jurisdiction in a single provision and practically deletes wording of Art 12(1) of the Brussels IIa Regulation. Only new Recital 23 specifies that such prorogation within the meaning of Art 12(1) of the Brussels IIa Regulation is still possible: ‘Under specific conditions laid down by this Regulation, it should be possible for jurisdiction in matters of parental responsibility also to be established in a Member State where proceedings for divorce, legal separation or marriage annulment are pending between the parents, or in another Member State with which the child has a substantial connection and which the parties have either agreed upon in advance, at the latest at the time the court is seised, or accepted expressly in the course of those proceedings, even if the child is not habitually resident in that Member State, provided that the exercise of such jurisdiction is in the best interests of the child.’ 61 Where one of the holders of the parental responsibility is not subject to the proceedings for divorce, legal separation, or marriage according to Art 3 of the Brussels IIa Regulation, the provision requires an additional agreement also with such a holder. Certain linguistic versions suggest that either the agreement between the spouses or the agreement between the holders of parental responsibility is necessary (eg, Spanish and German versions), other linguistic versions provide for the wording ‘and’, where both agreements are required (eg, English, French, and Italian version). It may be suggested that both the spouses and holder of the parental responsibility must accept jurisdiction, see Pataut, Gallant (n 4) 156. The term ‘holder of parental responsibility’ is defined in Art 2(8) of the Brussels IIa Regulation. Under new Art 10 of the Brussels IIter Regulation the parties and any other holder of parental responsibility are newly the parties to the agreement. On the parties under Art 10 of the Brussels IIter Regulation see section 1.1.

Choice-of-Court and Choice-of-Law Clauses  671 c)

it is in ‘the superior interests of the child’ that the court of that Member State should exercise jurisdiction.62

As to unification of proceedings for parental responsibility with divorce or legal separation or marriage annulment, the following scenarios are possible: • the spouses informally agree to seise a Member State court competent for the proceedings relating to divorce or legal separation or marriage annulment as listed in Article 3 of the Brussels IIa Regulation (this agreement inter partes has a strictly informal character and is not binging in any case), ie they file a joint application for divorce or legal separation or marriage annulment under Article 3(1)(a) fourth indent,63 and subsequently they extend the jurisdiction of such a court also to the matters relating to parental responsibility according to Article  12(1) of the Brussels IIa Regulation;64 • an application for divorce or legal separation or marriage annulment is filed by one of the spouses, and the spouses can subsequently extend the jurisdiction of the court seised with the divorce proceeding to matters relating to parental responsibility through the application of Article 12(1) of the Brussels IIa Regulation; or • the spouses can agree on a competent court relating to parental responsibility ex ante through conclusion of declaration of consent concerning parental responsibility, ie, before the court is seised with the divorce or legal separation or marriage annulment proceedings (eg when the child is born, when the spouses get married). However, the spouses which agree to unify the proceedings on parental responsibility with the divorce or legal separation or marriage annulment proceedings through declaration

On the definition of the time when n a court shall be deemed to be seised see Art 16 of the Brussels  IIa ­Regulation determining ‘seizing of a court’. According to Art 10(1)(b) of the Brussels IIter Regulation, the parties, as well as any other holder of parental responsibility must agree freely upon the jurisdiction, at the latest at the time the court is seised; or must expressly accept the jurisdiction in the course of the proceedings and the court must ensure that all the parties are informed of their right not to accept the jurisdiction. It must be stated in this regard that in case of acceptance of the jurisdiction in the course of the proceedings, such jurisdiction shall be exclusive in virtue of Art 10(4). In order to enhance the effectiveness of such exclusive choice-of-court agreements, a new rule on lis pendens has been established (Art 20(4) and (5) of the Brussels IIter Regulation), which practically mirrors the solution adopted in Art 31(2) of the Brussels Ia Regulation, which was a reaction to Case C-116/02, Gasser v MISAT (n 7). On the formal validity and time factor of the agreement see in ‘Formal Requirements’ in this section. 62 Different wording of Art 12(1) and 12(3) regarding ‘best’ and ‘superior’ interest of the child does not imply any legal difference, and results only from a lack of the drafters (or the translators) of the Brussels IIa Regulation, see in this respect Pataut, Gallant (n 4) 165; Practice Guide for the application of the new Brussels II Regulation, European Commission 32. See Art 10 of the Brussels IIter Regulation which unifies the term best interest of the child. On the best interest of the child, see section 1.1. 63 According to some authors, it is possible to refer to this ground of jurisdiction where procedure of relevant Member States enables the parties to present joint application, other authors opt for the broader interpretation which covers any divorce petition with the consent of other spouse, see M Ní Shúilleabháin, Cross-Border Divorce Law: Brussels II Bis (Oxford University Press, 2010) 137. 64 The Brussels IIa Regulation, as well as the Brussels IIter Regulation, do not contain any rule on choiceof-court agreements in divorce or legal separation or marriage annulment. Only the Proposal for a Council Regulation amending Regulation (EC) No 2201/2003 as regards jurisdiction and introducing rules concerning applicable law in matrimonial matter of 17 July 2006, COM(2006) 399 final, proposed to introduce a new rule on choice-of-court agreements in divorce, legal separation or marriage annulment. Such proposal, however, has never been adopted.

672  Francesca Clara Villata and Lenka Válková of consent concerning parental responsibility ex ante according to Article 12(1) of the Brussels IIa Regulation, do not have a true possibility to foresee at the time of conclusion of declaration of consent concerning parental responsibility which court will actually exercise jurisdiction on divorce or legal separation or marriage annulment proceedings, if ever. In any case, the conditions above (eg best interest of the child) will be evaluated only when the court is seised. In all three scenarios, it must be borne in mind that the evaluation of the fulfilment of the conditions given in Article 12(1) of the Brussels IIa Regulation allows for important judicial discretion. Therefore, a court may disregard the parties’ informal agreement or declaration of consent and consequently decline jurisdiction.

Example: Lars was born in 2011 to the spouses Nick and Irene (Greek nationals), who had been living in Paris for 10 years. In 2014, Irene lawfully moved to Germany with Lars. Nick and Irene wish to seise a court according to Article 3 of the Brussels IIa Regulation for divorce and to have that same court decide on parental responsibility according to Article 12(1) of the Brussels IIa Regulation. Nick and Irene can choose one of the following courts for divorce proceedings: –– a French court according to the second indent of Article 3(1)(a) of the Brussels IIa Regulation (based on the last habitual spouses’ residence, insofar as Nick still resides there); according to the third indent of Article 3(1)(a) of the Brussels IIa Regulation (based on the habitual residence of Nick, if Irene files action for divorce), according to the fourth indent of Article 3(1)(a) of the Brussels IIa Regulation (based on the habitual residence of Nick in case of joint application); –– a German court according to the third indent of Article  3(1)(a) of the ­Brussels IIa Regulation (based on the habitual residence of Irene, if Nick files the action for divorce); according to the fourth indent of Article 3(1)(a) of the Brussels IIa Regulation (based on the habitual residence of Irene, since she resided there for at least one year immediately before the application was made, if Irene files the action for divorce); according to the fifth indent of Article 3(1)(a) of the Brussels IIa Regulation (based on the habitual residence of Irene in case of joint application); –– a Greek court according to Article  3(1)(b) of the Brussels  IIa Regulation (based on the nationality of Nick and Irene). Subsequently, Nick and Irene could seise a court to rule on parental­ responsibility according to Article 12(1) of the Brussels IIa Regulation.

Choice-of-Court and Choice-of-Law Clauses  673

However, Nick insists on seizing a court in Greece as to divorce and Irene prefers to seise a court in France. As a consequence, Irene immediately files an application for divorce before a French court according to Article 3(1)(a) third indent of the Brussels  IIa Regulation. Since Nick prefers that a French court decide on parental responsibility instead of a German court (which probably would have jurisdiction in matters relating to parental responsibility according to Article 8 of the Brussels IIa Regulation, given that Lars is habitually resident in Germany at the time the court is seised and no other court has jurisdiction according to Article 9, 10, 12 or 15 of the Brussels IIa Regulation) Nick and Irene agree to the jurisdiction of the French court regarding parental responsibility according to Article 12(1) of the Brussels IIa Regulation. However, as already stated above in this section, although if Nick and Irene agree that one of the courts above has jurisdiction (eg, Greek court), such court can disregard the parties’ declarations of consent, eg, the Greek court can decide that the commencement of the custody proceedings in Greece would not be in the superior interests of the child, even if the condition regarding substantial connection in virtue of Article12(1) of the Brussels IIa Regulation was satisfied. Model Clause No 1 – The court as to divorce or legal separation or marriage annulment has already been seised 1. [Full name and identification details of party A] and [Full name and identification details of party B], the spouses and the holders of parental responsibility,65 accept the jurisdiction of [Identification of a specific Member State court], as the court already seised by virtue of Article 3 paragraph 1 litt. [a) or b)], [one of its six indents in case of litt. a)] of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (‘Regulation (EC) No 2201/2003’) on an application for divorce, legal separation or marriage annulment, in relation to parental responsibility over the child [Full name and identification details of the child] in accordance with Article 12 paragraph 1 of Regulation (EC) No 2201/2003. 2. It is hereby declared that the jurisdiction of the court hereinabove is in the superior interests of the child. 66 Date signed: [______________] Date signed: [______________] Signature of the party: [______________] Signature of the party: [______________]

65 At least of one of the spouses must have parental responsibility over the child and both holders must agree with the prorogation of jurisdiction of a specific court. In such a case, the declaration of consent should be modified and should also contain the approval from the holder which is not party to the divorce proceedings. 66 On the legal proceedings instituted on or after 1 August 2022, see n 9.

674  Francesca Clara Villata and Lenka Válková

Note regarding Model Clause No 1, Sub-Clause No 2: It is recommended to specify why the parties believe that jurisdiction of court/courts of that Member State is in the superior interest of the child. Nevertheless, the evaluation of the fulfilment of the conditions given in Article 12(3) of the Brussels IIa Regulation, which covers the superior interest of the child, (and best interest of the child under Article 10 of the Brussels IIter Regulation) allows important judicial discretion. Therefore, a court could well disregard the parties’ statement and might evaluate the superior interest of the child differently.

Model Clause No 2 – The court as to divorce or legal separation or marriage annulment has not been seised yet [Full name and identification details of party A] and [Full name and identification details of party B], the spouses and the holders of parental responsibility,67 accept the jurisdiction of the court exercising jurisdiction by virtue of Article 3 of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (‘Regulation (EC) No 2201/2003’) on an application for divorce, legal ­separation or marriage annulment, in relation to parental responsibility over the child [Full name and identification details of the child]in accordance with Article 12 paragraph 1 of Regulation (EC) No 2201/2003.68 Date signed: [______________] Date signed: [______________] Signature of the party: [______________] Signature of the party: [______________] Note regarding Model Clause No 2: Due to the lack of choice-of-court rules relative to divorce or legal separation or marriage annulment in the Brussels  IIa Regulation and Brussels  IIter Regulation, and on the basis of the current Model Clause, the parties before the dispute cannot foresee with certainty which court will actually exercise jurisdiction on both subject matters.69

67 At least of one of the spouses must have parental responsibility over the child and both holders must agree with prorogation of jurisdiction of a specific court. In such a case, the declaration of consent should be modified and should contain also the approval from the holder which is not party to divorce proceedings. 68 On the legal proceedings instituted on or after 1 August 2022, see n 9. 69 This is the result of the plurality of jurisdictional grounds for divorce/separation/annulment laid down in Art 3 of the Brussels IIa Regulation and of the fact that parental responsibility ‘follows’ divorce/separation/ annulment (and not the opposite).

Choice-of-Court and Choice-of-Law Clauses  675

This Model Clause may benefit the parties who wish to concentrate the proceedings relating to divorce or legal separation or marriage annulment and parental responsibility, notwithstanding the impossibility to predict which court will assume jurisdiction. Such agreement, however, may even encourage abusive litigation tactics (such as a rush to court, please see footnote 2), as either spouses may rush to file the claim before the court that will apply the most beneficial substantive rules concerning divorce and parental responsibility. The parties must be aware of the consequences of such an agreement. Formal requirements: Article 12(1) of the Brussels IIa Regulation prescribes that the jurisdiction of the courts must be accepted expressly70 or otherwise in an unequivocal manner by the spouses and by the holders of parental responsibility at the time the court is seised.71

70 Only this part regarding formal requirements is relevant for the purpose of the Model Clause hereinabove. 71 In Case C-656/13 L v M (n 4) the CJEU stated that where the defendant brings a second proceedings before the same court, as the plaintiff did, and pleads the lack of jurisdiction of that court, it cannot be considered that the jurisdiction of the Member State court seised by one party of proceedings in matters of parental responsibility has been ‘accepted expressly or otherwise in an unequivocal manner by all the parties to the proceedings’ according to Art 12(3)(b) of the Brussels IIa Regulation. The CJEU stated this provision must be read with Art 16 of the Brussels IIa Regulation, which requires the existence of the agreement to be shown at the latest at the time when the document instituting the proceedings or an equivalent document is lodged with the court chosen. On the other hand, by argument a contrario, the CJEU held that Art 12(3)(b) of the Brussels IIa Regulation must be interpreted as meaning that jurisdiction has not been accepted where the defendant, on taking the first step required of him in the proceedings concerned, pleads the lack of jurisdiction of the court prorogation of whose jurisdiction is at issue. See also Case C-565/16 Alessandro Saponaro and Kalliopi-Chloi Xylina (n 6) para 25, where the CJEU stated that, where both parents make a joint application to the same court, they demonstrate their willingness to seise that court and, in so doing, their agreement with the choice of court having jurisdiction – in the absence of other facts contradicting that finding, that agreement must be regarded as ‘unequivocal’, within the meaning of Art 12(3)(b) of the Brussels IIa Regulation. It is still questionable whether the acceptance within the meaning of Art 12 of the Brussels IIa Regulation may also cover submission by appearance. There is no uniform approach in the Member States in this regard. The national courts seem to accept a unified approach as to the question concerning non-admissibility of the extension of the acceptance of the jurisdiction in divorce proceedings to the parental responsibility matter. See Cass, 30 December 2011 No 30646, ITT20111230, where the court specified that the acceptance of the jurisdiction of the Italian court as to parental responsibility could not be inferred from the failure of the party to contest its jurisdiction on the personal separation petition, since the two applications have different objects. In France, see Cass, 13 May 2015, No 13-21.827, FRT20150513; in UK see Mark Ian Bush v Neena Bush [2008] EWCA Civ 865. See also MC Baruffi, C Fratea, C Peraro, Report on the Italian Good Practices, 6 available at www.eufams.unimi.it/2017/01/10/italian-report-on-good-practices/: ‘The academics generally agreed that in such cases Art 12 cannot be applied and that the acceptance of the jurisdiction must be, if not necessarily written, at least explicit, which implies the appearance of the parties before the court. The provision itself does not require a written agreement, but the jurisdiction must be accepted expressly or otherwise in an unequivocal manner by the spouses and by the holders of parental responsibility, even because matrimonial and parental responsibility matters, even when dealt with jointly, must be treated separately.’. As to acceptance of jurisdiction during the proceedings under new Art 10 of the Brussels IIter Regulation, see section II.A.

676  Francesca Clara Villata and Lenka Válková In any case, it seems advisable to record the agreement in a document signed by the parties involved.72 Article 10(2) of the Brussels IIter Regulation newly specifies that ex-ante agreements or acceptance of jurisdiction during the proceedings shall be in ­writing, dated and signed by the parties concerned or included in the court record in accordance with national law and procedure. Therefore, the Model Clause above should fulfill also the formal requirements requested by Article 10(2) of the Brussels IIter Regulation.

ii.  Divorce or Legal Separation or Marriage Annulment and Maintenance between Spouses As stated above (in section III.A.i.), the Brussels IIa Regulation does not provide for choice-of-court rules in proceedings relating to divorce or legal separation or marriage annulment. However, the spouses may unify the proceedings relating to divorce or legal separation or marriage annulment and maintenance between themselves through the application of Article 4(1)(c)(i) of the Maintenance Regulation concerning choice-ofcourt agreements relating to maintenance between the spouses (see also Article 3(c) of the Maintenance Regulation, which allows for unification of the maintenance proceedings with proceedings relating to divorce or legal separation or marriage annulment).73 Pursuant to Article 4(1)(a) or 4(1)(b) of the Maintenance Regulation, the parties may agree on the jurisdiction of a court or the courts of a Member State in which one of the parties is habitually resident or of which one of them has nationality. Nevertheless, it would be only by chance that the chosen court coincides with the court seised of divorce or legal separation or marriage annulment. In fact, the spouses may: (i) informally agree on the jurisdiction of a Member State court competent for the proceedings relating to divorce or legal separation or marriage annulment (this agreement inter partes has a strictly informal character and is not binding in any case) and file a joint application for divorce or legal separation or marriage annulment: or (ii) one of the spouses may unilaterally seise a Member State court with proceedings relating to divorce or legal separation or marriage annulment according to Article 3. The concentration of the proceedings relating to divorce or legal separation or marriage annulment with the proceedings concerning spouses’ maintenance may be achieved through a choice-of-court agreement concluded under Article 4(1)(c)(i) of the Maintenance Regulation.

72 It is generally accepted that the agreement may be executed in two counterparts. 73 Art 3(c) of the Maintenance Regulation will not be further analyzed in this Model Protocol on Choice-ofCourt and Choice-of-Law clauses as a tool of unification of the proceedings since it operates independently from the agreement between parties.

Choice-of-Court and Choice-of-Law Clauses  677 Example: Slovak spouses, Dominika and David, used to live together in Portugal. When they married, they concluded a choice-of-court agreement according to Article 4(1)(c)(i) of the Maintenance Regulation, whereby the court competent for divorce should also have jurisdiction over spouses’ maintenance obligations. David moved to the Netherlands in 2015. As to divorce or legal separation or marriage annulment, Dominika and David can seise a court: –– in Portugal according to fourth indent of Article 3(1)(a) of the ­Brussels IIa Regulation in the event of a joint application (based on the habitual ­residence of Dominika); according to Article  3(1)(a) second indent of the ­Brussels IIa Regulation (based on the last habitual spouses’ residence, insofar as Dominika still resides there); according to 3(1)(a) third indent of the Brussels IIa Regulation if David files an application for divorce (based on the habitual residence of Dominika as a respondent); –– in the Netherlands according to fourth indent of Article  3(1)(a) of the Brussels  IIa Regulation in the event of a joint application (based on ­ the ­ habitual residence of David); according to 3(1)(a) third indent of the ­Brussels  IIa Regulation if Dominika files an application on divorce (based on the habitual residence of David – as a respondent); according to 3(1)(a) fifth indent of the Brussels IIa Regulation if David files an application on divorce (based on the habitual residence of the David as applicant since he resided there for at least a year immediately before the application was made); –– in Slovakia according to Article 3(1)(b) of the Brussels IIa Regulation (based on the nationality of Dominika and David). As to the maintenance obligations between them, the spouses must seise the court with jurisdiction to settle their dispute in matrimonial matters in accordance with the choice-of-court agreement concluded, pursuant to Article 4(1)(c)(i) of the Maintenance Regulation. Model Clause: [Full name and identification details of party A] and [Full name and identification details of party B] irrevocably agree that the court which has jurisdiction to settle their dispute in matrimonial matters in accordance with the Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility74 is to have exclusive ­jurisdiction to settle any disputes in matters relating to a maintenance



74 On

the legal proceedings instituted on or after 1 August 2022 see n 9.

678  Francesca Clara Villata and Lenka Válková

obligation which have arisen or may arise between them according to Article 4 paragraph 1 litt. c) (i) of Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations and no other court is to have jurisdiction.75 Date signed: [______________] Date signed: [______________] Signature of the party: [______________] Signature of the party: [______________] Note: Due to the lack of a choice-of-court rule relating to divorce or legal separation or marriage annulment in the Brussels  IIa Regulation and Brussels  IIter Regulation, and on the basis of the current Model Clause the parties before the dispute cannot foresee with certainty which court will actually exercise jurisdiction in both subject matters.76 Therefore, this Model Clause may benefit the parties who wish to concentrate the proceedings relating to divorce or legal separation or marriage annulment and maintenance, notwithstanding the impossibility to foresee which court will actually exercise jurisdiction. Such an agreement, however, may even encourage abusive litigation tactics (rush to court, please see footnote 2), as either spouse may rush to file the claim before the court that will apply the most beneficial substantive rules concerning divorce and maintenance. The parties must aware of the consequences of such an agreement. Instead, if the parties intend to conclude a choice-of-court agreement after the dispute has arisen, please refer to Model Clause in section II.C. On the formal requirements, see section II.C. above

iii.  Divorce or Legal Separation or Marriage Annulment/Annulment or Dissolution of Registered Partnerships and Property Regime Article  5(1) of the Matrimonial Property Regime Regulation automatically connects proceedings relating to divorce or legal separation or marriage annulment with 75 The exclusivity of the jurisdiction conferred by the agreement is determined by Art 4(1) last indent, however the parties may agree otherwise, ie on a non-exclusive jurisdiction clause (the parties are not prevented from litigating in other courts). On non-exclusive jurisdiction clause see section II.C. 76 This is the result of the plurality of jurisdictional grounds for divorce or legal separation or marriage annulment laid down in Art 3 of the Brussels IIa Regulation and of the fact that maintenance ‘follows’ divorce or legal separation or marriage annulment (and not the opposite).

Choice-of-Court and Choice-of-Law Clauses  679 proceedings relating to matrimonial property regime. Nevertheless, according to Article 5(2) a choice-of-court agreement is required in order to unify proceedings relating to divorce with proceedings relating to matrimonial property when: • the application for divorce was filed in accordance with the fifth indent of Article 3(1)(a) of the Brussels IIa Regulation (applicant’s habitual residence for at least a year immediately before the application was made); or • the application on divorce or legal separation or marriage annulment was filed in accordance with the sixth indent of Article  3(1)(a) of the Brussels  IIa Regulation (applicant national of that State and habitually resident there for at least six months immediately before the application was made); or • the court was seised pursuant to Article 5 of the Brussels IIa Regulation in cases of conversion of legal separation into divorce; or • the court was seised pursuant to Article 7 of the Brussels IIa Regulation in cases of residual jurisdiction. Article  5(1) of the Regulation on Property Consequences of Registered Partnership provides that a court of a Member State seised to rule on the dissolution or annulment of a registered partnership will also rule on the property consequences of the registered partnership only if the partners so agree. In this case, the national rules of private international (procedural) law will govern the question of jurisdiction in relation to the dissolution of registered partnership.

Example: Two spouses, Mikko (Finnish national) and Emilia (Swedish national), live in France and they are going to marry on 1 May 2022. One month before their marriage, they decide to conclude a choice-of-court agreement according to Article  5(2) of the Matrimonial Property Regime Regulation since they wish to ensure that the court competent for divorce will have jurisdiction over their property regime in any case. We can imagine that the relationship between Mikko and Emilia ends in 2025 when Mikko moves back to Finland and he files an application for divorce before a Finnish court in accordance with Article  3(1)(a) fifth indent of the Brussels  IIter Regulation (based on the habitual residence of Mikko since he resided in Finland for at least six months immediately before the application was made and is also a national of the Member State). Due to the choice-of-court agreement regarding property regime, the Finnish court will have also jurisdiction on matrimonial property issues.

680  Francesca Clara Villata and Lenka Válková

Model Clause No 1(a) Matrimonial property regime according to Article 5(2) of Matrimonial Property Regime Regulation, when application for divorce or legal separation or marriage annulment has not been filed yet [Full name and identification details of party A] and [Full name and identification details of party B] irrevocably agree that the court seised to rule on an application for [divorce/legal separation/marriage annulment] in accordance with Articles 3, 5 and 7 of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility,77 is to have exclusive jurisdiction to rule on matters of their matrimonial property regime in accordance with Article 5, including the cases provided in Article 5 paragraph 2, of Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes and no other court is to have jurisdiction.78 Date signed: [______________] Date signed: [______________] Signature of the party: [______________] Signature of the party: [______________] Note regarding Model Clause No 1(a): Due to the lack of choice-of-court rules relating to divorce or legal ­separation or marriage annulment in the Brussels  IIa Regulation and Brussels  IIter Regulation, on the basis of the Model Clause above, the parties before the dispute cannot foresee with certainty which court will actually exercise jurisdiction in both subject matters.79 This Model Clause may benefit the parties who wish to concentrate the proceedings relating to divorce or legal separation or marriage annulment and property regime also in cases covered in Article  5(2) of the Matrimonial Property Regime Regulation, without the possibility to foresee which court will actually exercise jurisdiction. Such agreement, however, may even encourage abusive litigation tactics (for example, rush to court, please see footnote 2), as either spouse may rush to file the claim before the court that will apply the most beneficial

77 On the legal proceedings instituted on or after 1 August 2022, see n 9. 78 The exclusivity of the jurisdiction conferred by the agreement is determined in Art 7(1) of the Matrimonial Property Regime Regulation. It is doubtful whether the parties may agree on a non-exclusive jurisdiction clause. 79 This is the result of the plurality of jurisdictional grounds for divorce or legal separation or marriage annulment laid down in Art 3 of the Brussels IIa Regulation and of the fact that property regime ‘follows’ divorce or legal separation or marriage annulment (and not the opposite).

Choice-of-Court and Choice-of-Law Clauses  681

substantive rules concerning divorce and property regime. The parties must be aware of consequences of such agreement. Moreover, this concentration of the jurisdiction under Article  5 of the Matrimonial Property Regime Regulation may be achieved only when the court seised for divorce or legal separation or marriage annulment under the Brussels  IIa Regulation is ­situated in the Member State which participates in the enhanced cooperation in the area of matters concerning matrimonial property regime. Due to the wording of Article  5(2) of the Matrimonial Property Regime Regulation, referring to ‘where the court that is seised’, it can be deduced that the choice-of-court agreement will become effective when the court of a participating Member State is seised to rule on the application for divorce, legal separation or marriage annulment, according to last two indents of Article 3(1)(a) and Article 5 and 7 of the Brussels IIa Regulation. The possibility to conclude a choice-of-court agreement before the court is seised is supported by Article 5(3) of the Matrimonial Property Regime Regulation.80 or Model Clause No 1(b) Property consequences of registered partnership according to Article 5(1) of the Regulation on Property Consequences of Registered Partnership when application for dissolution/annulment of a registered partnership has not been filed yet [Full name and identification details of party A] and [Full name and ­identification details of party B] irrevocably agree that the court seised to rule on the [dissolution or annulment] of a registered partnership in accordance with [national act on private international (procedural) law] is to have exclusive jurisdiction to rule on the property consequences of their registered partnership in accordance with Article 5 paragraph 1 of Council Regulation (EU) 2016/1104 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of the property consequences of registered partnerships and no other court is to have jurisdiction.81 Date signed: [______________] Date signed: [______________] Signature of the party: [______________] Signature of the party: [______________]

80 Support for this conclusion is in Bruno (n 36) 89. 81 The exclusivity of the jurisdiction conferred by the agreement is determined in Art 7(1) of the Regulation on the Property Consequences of Registered Partnerships. It is doubtful whether the parties may agree on a non-exclusive jurisdiction clause.

682  Francesca Clara Villata and Lenka Válková

Note regarding Model Clause No 1(b): Due to the lack of EU rules on choice-of-court agreements relating to the dissolution or annulment of registered partnerships, on the basis of the current Model Clause the parties before the dispute cannot foresee with certainty which court will actually exercise jurisdiction in both subject matters. This Model Clause may benefit the parties who wish to concentrate the proceedings relating to dissolution or annulment of registered partnership and property regime according to Article 5 of the Regulation on Property Consequences of Registered Partnerships, without the possibility to foresee which court will actually exercise jurisdiction. The parties must be aware of the consequences of such an agreement. However, the scenario might be very different if the relevant national act grants the possibility to choose the competent forum in relation to the dissolution or annulment of registered partnerships. Moreover, this concentration of the jurisdiction under Article 5 of the Regulation on Property Consequences of Registered Partnerships may be achieved only when the court seised for dissolution or annulment of registered partnership is situated in the Member State which participates in the enhanced cooperation in the area of matters concerning registered partnership property regime. Due to the wording of Article  5(1) of the Regulation on Property Con­sequences of Registered Partnerships, referring to ‘where the court that is seised’, it can be deduced that a choice-of-court agreement will become effective when the court of participating Member State is seised to rule on the dissolution or annulment of a registered partnership. The possibility to conclude a choice-of-court agreement before the court is seised is supported by Article 5(3) of the Regulation on Property Consequences of Registered Partnership. Model Clause No 2(a) Matrimonial property regime according to Article  5(2) Matrimonial Property Regime Regulation when application for divorce or legal separation or marriage annulment has already been filed according to last two indents of Article 3(1)(a) or according to Article 5 or 7 of the Brussels IIa Regulation [Full name and identification details of party A] and [Full name and identification details of party B] irrevocably agree [Identification of a specific Member State court], as the court already seised by virtue of Article 3 paragraph 1 litt. a [fifth or sixth, to be specified] indent or[ according to Article 5 or 7] of

Choice-of-Court and Choice-of-Law Clauses  683

Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility82 on an application for [divorce/legal separation/marriage annulment], is to have exclusive jurisdiction to rule on matters of their matrimonial property regime in accordance with Article  5 paragraph 2 of Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes and no other court is to have jurisdiction.83 Date signed: [______________] Date signed: [______________] Signature of the party: [______________] Signature of the party: [______________] or Model Clause No 2(b) Property consequences of registered partnership according to Article 5(1) of the Regulation on Property Consequences of Registered Partnership when application for dissolution or annulment of a registered partnership has already been filed [Full name and identification details of party A] and [Full name and identification details of party B] irrevocably agree that [Identification of a specific Member State court], as the court already seised to rule on the [dissolution or annulment] of a registered partnership in accordance with [national act on private international or procedural law], is to have exclusive jurisdiction to rule on the property consequences of their registered partnership in accordance with Article  5 paragraph 1 of Council Regulation (EU) 2016/1104 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of the property consequences of registered partnerships and no other court is to have jurisdiction.84 Date signed: [______________] Date signed: [______________] Signature of the party: [______________] Signature of the party: [______________]

82 On the legal proceedings instituted on or after 1 August 2022, see n 9. 83 The exclusivity of the jurisdiction conferred by the agreement is determined in Art 7(1) of the Matrimonial Property Regime Regulation. It is doubtful whether the parties may agree on a non-exclusive jurisdiction clause. 84 The exclusivity of the jurisdiction conferred by the agreement is determined in Art 7(1) of the Regulation on the Property Consequences of Registered Partnerships. It is doubtful whether the parties may agree on a non-exclusive jurisdiction clause.

684  Francesca Clara Villata and Lenka Válková Formal requirements Also, jurisdictional agreements concluded before the court is seised under Article  5(2) of the Matrimonial Property Regime Regulation and under Article  5(1) of the Regulation on Property Consequences of Registered Partnerships must fulfil formal requirements provided under Article  7(2) of both Regulations.85 Therefore, on the formal requirements, see sections II.E. and II.F. above.

iv.  Divorce or Legal Separation or Marriage Annulment, Matrimonial Property Regime, Parental Responsibility and Maintenance As demonstrated above, the jurisdictional rules in the various EU regulations are structured in order to facilitate the unification of the proceedings in correlated family matters before the court seised with the divorce or legal separation or marriage annulment proceedings. Proceedings relating to divorce or legal separation or marriage annulment according to Article 3 of the Brussels IIa Regulation (when the spouses file a joint application for divorce or legal separation or marriage annulment; or when a court is seised unilaterally only by one of the spouses) may be unified with those relating to parental responsibility, maintenance and matrimonial property regime through the application of the following rules: • Article 12(1) of the Brussels Iia Regulation which permits to prorogue jurisdiction of a court having jurisdiction on divorce or legal separation or marriage annulment to parental responsibility matters (however, the evaluation of the fulfilment of the conditions given in Article 12(1) of the Brussels Iia Regulation allows the court for important judicial discretion, whereby a court may disregard the parties’ declaration of consent and consequently decline jurisdiction); • Article  4(1)(c)(i) of the Maintenance Regulation, which enables spouses to agree on a court in maintenance matters which has jurisdiction to settle their dispute in matrimonial matters; • Article  5 of the Matrimonial Property Regime Regulation, which automatically connects proceedings relating to divorce or legal separation or marriage annulment with proceedings relating to the matrimonial property regime or allows the proceedings to be connected on the basis of the spouses’ choice-of-court agreement; • Finally, Article 3(d) of the Maintenance Regulation enables to seise a court which has jurisdiction on proceedings concerning parental responsibility with a claim 85 It seems that when the jurisdiction agreement under Art 5(2) of the Matrimonial Property Regime ­Regulation or under Art 5(1) of the Regulation on Property Consequences of Registered Partnerships is concluded during the proceedings, it does not have to meet the formal requirements prescribed in Art 7(2) of both Regulations since it is assumed that is recorded in the minutes of the proceedings under the supervision of the court, on support of this conclusion see Bruno (n 36) 89.

Choice-of-Court and Choice-of-Law Clauses  685 for child support since a choice-of-court agreement is not allowed in the circumstance where the child is under 18 years old (Article  4(3) of the Maintenance Regulation).

Example: Slovenian spouses Jan and Nina and their daughter Laura (4 years old) live in Italy. They are going to marry on 24 May 2021. They wish that the court competent for divorce will have jurisdiction in all correlated family matters. As a result, they wish to conclude a choice-of-court agreement according to Article 12(1) of the Brussels IIa Regulation regarding parental responsibility over Laura, according to 4(1)(c)(i) of the Maintenance Regulation regarding maintenance obligations between them and according to Article 5 of the Matrimonial Property Regime Regulation regarding their matrimonial property regime. We can imagine the following scenario: Jan and Nina concluded the choice-of-court agreement as described above one week after their marriage in May 2021. Unfortunately, the relationship between Jan and Nina ends in 2022 and Nina moves to Austria with Laura. First, Jan and Nina may seise a court as to divorce: –– in Italy, according to Article 3(1)(a) fourth indent of the Brussels IIa Regulation in the event of a joint application (based on the habitual residence of Jan), according to Article 3(1)(a) second indent of the Brussels IIa Regulation (based on the last habitual spouses’ residence, insofar as Jan still resides there), according to 3(1)(a) third indent of the Brussels IIa Regulation if Nina files an application for divorce (based on the habitual residence of Jan – as a respondent). –– in Austria, according to Article  3(1)(a) fourth indent of the Brussels  IIa Regulation in the event of a joint application (based on the habitual residence of Nina), according to 3(1)(a) third indent of the Brussels  IIa Regulation if Jan files an application on divorce (based on the habitual residence of Nina – as a respondent), according to 3(1)(a) fifth indent of the Brussels IIa Regulation if Nina files an application on divorce (based on the habitual residence of the Nina as applicant since he resided there for at least a year immediately before the application was made); –– in Slovenia, according to Article 3(1)(b) of the Brussels IIa Regulation (based on the nationality of both Jan and Nina). Second, the same court may exercise jurisdiction as to the parental responsibility according to Article 12(1) of the Brussels IIa Regulation on the basis of the spouses’ agreement. However, as already stated above in this section, although if Jan and Nina agree that one of the courts above has jurisdiction (eg, Slovenian court), such court can disregard the parties’ declaration of consent, eg, the Slovenian court can decide that the commencement of the custody proceedings in Slovenia would not be in the superior interest of the child, even if the other

686  Francesca Clara Villata and Lenka Válková

conditions pursuant to Article12(1) of the Brussels IIa Regulation are satisfied; Third, in accordance with the choice-of-court agreement according to Article 4(1)(c)(i) of the Maintenance Regulation the same court will have jurisdiction as to the maintenance obligations between the spouses. Fourth, according to Article  5 of the Matrimonial Property Regime Regulation the same court is automatically competent as to the matrimonial property regime when the court for divorce was seised under first four indents of Article 3(a) or under Article 3(b) of the Brussels IIa Regulation. If we presume that court for divorce will be seised according to Article 3(1)(a) sixth indent of the Brussels IIa Regulation, then a choice-of-court agreement under Article 5(2) of the Matrimonial Property Regime Regulation will ensure to connect divorce proceedings with matrimonial property regime proceedings. Fifth, the same court can be subsequently seised according to Article 3(d) of the Maintenance Regulation as to the maintenance obligations towards a child. Model Clause: [Full name and identification details of party A] and [Full name and identification details of party B] agree that the court exercising jurisdiction by virtue of Article  3 of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (‘Regulation (EC) No 2201/2003’)86 on an application for divorce, legal separation or marriage annulment, is to have exclusive jurisdiction to settle any disputes: a) in relation to parental responsibility for the child [Full name and identification details of the child] in accordance with Article  12 paragraph 1 of Regulation (EC) No 2201/2003;87 b) in matters relating to maintenance obligations which have arisen or may arise between them in accordance with Article 4 paragraph 1 litt. c) (ii) of Council Regulation (EC) No 4/2009 of 18 December 2008 on ­jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations;88 c) in matters of their matrimonial property regime in accordance with Article 5 including the cases provided in Article 5 paragraph 2 of C ­ ouncil

86 On the legal proceedings instituted on or after 1 August 2022, see n 9. 87 The jurisdiction must be accepted by spouses and by holders of parental responsibility, as well. The exclusivity of the jurisdiction conferred by the agreement is not determined by the Brussels IIa Regulation, however it is doubtful whether the parties may agree on a non-exclusive jurisdiction clause (the parties are not prevented from litigating in other courts) taking into consideration the nature of the subject matter (the parental responsibility matter). On the legal proceedings instituted on or after 1 August 2022, see n 9. 88 The exclusivity of the jurisdiction conferred by the agreement is determined by Art 4(1) last indent. However the parties may agree otherwise, such as on a non-exclusive jurisdiction clause in maintenance matters. On non-exclusive jurisdiction clauses, see section II.C.

Choice-of-Court and Choice-of-Law Clauses  687



Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced ­cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes. 89

Date signed: [______________] Date signed: [______________] Signature of the party: [______________] Signature of the party: [______________] Note regarding Sub-clause a) above: The evaluation of the fulfilment of the conditions given in Article 12(1) of the Brussels IIa Regulation allows important judicial discretion. Therefore, a court may disregard the parties’ declaration of consent and consequently decline jurisdiction. Note: Due to lack of a choice-of-court rule relating to divorce or legal separation or marriage annulment in the Brussels  IIa Regulation and Brussels  IIter Regulation, on the basis of the current Model Clause the parties before the dispute cannot foresee with certainty which court will actually exercise jurisdiction in all subject matters.90 This Model Clause may benefit the parties who wish to concentrate the proceedings relating to divorce or legal separation or marriage annulment, parental responsibility, maintenance and property regime also in cases covered in paragraph 2 of Article 5 of the Matrimonial Property Regime Regulation, without the possibility to foresee which court will actually exercise jurisdiction. Such agreement, however, may even encourage abusive litigation tactics (rush to court, please see footnote 2), as either spouse may rush to file the claim before the court that will apply the most beneficial substantive rules concerning divorce, parental responsibility, maintenance and property regime. The parties must aware of the consequences of such agreement. Moreover, this concentration of the jurisdiction under Article 5 of the Matrimonial Property Regime Regulation may be achieved only when the court seised for divorce or legal separation or marriage annulment under the Brussels  IIa Regulation is ­situated in the Member State which participates in the enhanced cooperation in the area of matters concerning matrimonial property regime.

89 The exclusivity of the jurisdiction conferred by the agreement is determined in Art 7(1) of the­ Matrimonial Property Regime Regulation. It is doubtful whether the parties may agree on non-exclusive jurisdiction clauses. 90 This is the result of the plurality of jurisdictional grounds for divorce or legal separation or marriage annulment laid down in Art 3 of the Brussels  IIa Regulation and of the fact that parental responsibility, maintenance and property regime ‘follow’ divorce or legal separation or marriage annulment (and not the opposite).

688  Francesca Clara Villata and Lenka Válková

Due to the wording of Article  5(2) of the Matrimonial Property Regime Regulation, referring to ‘where the court that is seised’, it can be deduced that choice-of-court agreements will become effective when the court of a participating Member State is seised to rule on the application for divorce, legal separation or marriage annulment according to last two indents of Article  3(1)(a) and Article  5 and 7 of the Brussels  IIa Regulation. The possibility to conclude choice-of-court agreements before the court is seised is supported by Article  5(3) of the Matrimonial Property Regime Regulation.91 If the parties intend to conclude a choice-of-court agreement after the dispute has arisen, please see Model Clause in sections II.C., II.A.i. and III.A.iii. On the formal requirements, see sections II.C., II.E., II.A.i. and III.A.iii. above.

v.  Succession and Property Regime The connection of the proceedings in succession and property regime matters works automatically in accordance with Article 4 of both the Matrimonial Property Regime Regulation and the Regulation on Property Consequences of Registered Partnership. As a consequence, no choice-of-court agreement is required. Choice-of-court agree­ments on property regimes in favour of a court other than a court competent according to the Succession Regulation are allowed in accordance with Article 7 of both the Matrimonial Property Regime Regulation and the Regulation on Property Consequences of Registered Partnership only in cases falling under Article 6 of both Regulations, where no court of a Member State has jurisdiction pursuant to Article 4, In other words, Article 7 could operate (when there is a choice-of-court agreement under Article 7 in favour of court of a Member State which participates in the enhanced cooperation in the area of matters concerning property regimes), when it is not possible to establish jurisdiction of the Member State court provided under Article  4 of the Matrimonial Property Regime Regulation or of the Regulation on Property consequences of Registered Partnership, since jurisdiction lies in a third state or non-participating Member State.



91 On

support of this conclusion, see Bruno (n 36) 89.

Choice-of-Court and Choice-of-Law Clauses  689 Example: Xavier, national of Malta, is habitually resident in Germany. He chooses the law of Malta to govern his succession as a whole in accordance with Article 22(1) of the Succession Regulation. We can imagine the following scenario: Due to a serious illness, Xavier dies in 2020. After his death, his heirs, his wife Daniela and their son Mirko, conclude a choice-of-court agreement in favour of the court of Malta as to the succession as a whole according to Article 5 of the Succession Regulation. Subsequently, Daniela may seise a court of Malta in relation to the matrimonial regime according to Article  4 of the Matrimonial Property Regime Regulation. Model Clause: [Full name and identification details of party A] and [Full name and ­identification details of party B] irrevocably agree that [Identification of a specific Member State court/Identification of the courts of a Member State] is/ are to have exclusive jurisdiction to rule on any succession matter in accordance with Article 5 paragraph 1 of the of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession (‘Regulation (EU) No 650/2012’) and no other court(s) is/are to have jurisdiction92 since on [date] the deceased, [Full name and identification details of deceased], chose as the law to govern his/her succession as a whole the law of [Specification of law designated by deceased] according to Article  22 of Regulation (EU) No 650/2012 whose nationality he/she possessed. Date signed: [______________] Date signed: [______________] Signature of the party: [______________] Signature of the party: [______________]

92 The exclusivity of the jurisdiction conferred by the agreement is determined by Art 5(1) of the Succession Regulation. It is doubtful whether the parties may agree on a non-exclusive jurisdiction clause.

690  Francesca Clara Villata and Lenka Válková

Note: Where a Member State court is seised in matters of succession, a choiceof-court agreement in property matters is not required since to the automatic connection of both subject matters is ensured by virtue of Article 4 of both the Matrimonial Property Regime Regulation and the Regulation on Property Consequences of Registered Partnership. Therefore, the Model Clause above reproduces only the choice-of-court agreement in succession matters laid out in section II.G.i. (if we presume that the deceased previously designated the law of his or her nationality to govern his or her succession). Otherwise, the proceedings will be anyway connected, absent a choice-ofcourt in succession matters. However, this concentration of the jurisdiction under the Matrimonial Property Regime Regulation and the Regulation on Property consequences of Registered Partnership may be achieved only when the court seised for succession under the Succession Regulation is situated in the Member State which participates in the enhanced cooperation in the area of matters concerning property regimes. On the formal requirements, see section II.G.i. above.

B.  Conflicts-of-Law Rules i.  Divorce or Legal Separation and Maintenance between Spouses The choice of the applicable law in proceedings relating to divorce is provided for in Article 5 of the Rome III Regulation. As stated in section II.B. above, the spouses may choose between: (a) the law of the state where the spouses are habitually resident at the time the agreement is concluded; (b) the law of the state where the spouses were last habitually resident, in so far as one of them still resides there at the time the agreement is concluded; (c) the law of the state of nationality of either spouse at the time the agreement is concluded; or (d) the law of the forum. The spouses may then agree that the same law is applicable to maintenance obligations between them in accordance with Article  8(1)(d) of the Hague Maintenance Protocol. The maintenance creditor and debtor may at any time designate the law designated by the parties as applicable, or the law in fact applied, to their divorce or legal separation. Such solution regarding unification of the law applicable to divorce or legal separation and maintenance between the spouses under Article  8(1)(d) of the 2007 Hague Maintenance Protocol comes into relevance as well when the spouses do not agree on the law applicable to divorce or legal separation in accordance with Article 5 of the Rome III Regulation. (For example, the applicable law is determined pursuant to Article 8 of the Rome III Regulation or pursuant to national conflict-of-laws rules in the Member States where the Rome III Regulation is not applicable).

Choice-of-Court and Choice-of-Law Clauses  691 Example: Elena (a Greek national) and Luca (an Italian national) are habitually resident in Spain. They married in summer 2017 and wish to conclude a choice-of-law agreement to ensure that the same law governs both divorce or legal separation and maintenance if they ever decide to put an end to their marriage. Elena and Luca may designate as to divorce or legal separation: –– Spanish law, according to Article 5(1)(a) of the Rome III Regulation (the law of the state where the spouses are habitually resident); –– Italian law, according to Article 5(1)(c) of the Rome III Regulation (based on the nationality of Luca); –– Greek law, according to Article 5(1)(c) of the Rome III Regulation (based on the nationality of Elena). Subsequently, according to Article  8(1)(d) of the 2007 Hague Maintenance Protocol the same law may be designated by the parties as to the maintenance. Model Clause No 1 Designation of the law applicable to divorce or legal separation and maintenance obligations between spouses according to Article 5 of the Rome III Regulation and Article  8(1)(d) of the Hague Maintenance Protocol [Full name and identification details of party A] and [Full name and identification details of party B] irrevocably agree that [divorce and/or legal separation] and maintenance obligations between them are governed by and determined only in accordance with [Specification of designated law] pursuant to Article  5 paragraph 1 litt. [___] of Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation and in accordance with Article 8 paragraph 1 litt. d) of the Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations. The same law will also govern the existence and validity of this choice-of-law clause or of any term thereof. 93

93 However, Art 8(4) of 2007 Hague Maintenance Protocol provides that: ‘Notwithstanding the law designated by the parties in accordance with paragraph 1, the question of whether the creditor can renounce his or her right to maintenance shall be determined by the law of the state of the habitual residence of the creditor at the time of the designation.’ Also Art 6(2) of the Rome III Regulation provides that: ‘Nevertheless, a spouse, in order to establish that he did not consent, may rely upon the law of the country in which he has his habitual residence at the time the court is seised if it appears from the circumstances that it would not be reasonable to determine the effect of his conduct in accordance with the law specified in paragraph 1.’

692  Francesca Clara Villata and Lenka Válková

This clause does not apply to property consequences of the marriage between the parties.94 Date signed: [______________] Date signed: [______________] Signature of the party: [______________] Signature of the party: [______________] Note regarding Model Clause No 1: This Model Clause referring to the Rome III Regulation may be used only in the Member States which participate in the enhanced cooperation in the area of matters concerning divorce or legal separation. In other States, their relevance will be assessed through their domestic PIL rules.

Model Clause No 2 Designation of the law applicable to maintenance obligations according to Article 8(1)(d) of the 2007 Hague Maintenance Protocol in the absence of a choice-of-law agreement as to divorce or legal separation [Full name and identification details of party A] and [Full name and identification details of party B] irrevocably agree that maintenance obligations between them are governed by the law in fact applied to their divorce or legal separation in accordance with Article  8 paragraph 1 letter d) of the Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations. The same law will also govern the existence and validity of this choice-of-law clause or of any term thereof.95 This clause does not apply to property consequences of the marriage between the parties.96 Date signed: [______________] Date signed: [______________] Signature of the party: [______________] Signature of the party: [______________]

94 This sentence is optional and can be inserted into the clause if the parties intend to clarify that said clause does not cover property consequences of the marriage. 95 However, Art 8(4) of 2007 Hague Maintenance Protocol provides: ‘Notwithstanding the law designated by the parties in accordance with paragraph 1, the question of whether the creditor can renounce his or her right to maintenance shall be determined by the law of the state of the habitual residence of the creditor at the time of the designation.’ 96 This sentence is optional and can be inserted into the clause if the parties intend to clarify that said clause does not cover property consequences of the marriage.

Choice-of-Court and Choice-of-Law Clauses  693

Note regarding Model Clause No 2: In case that the parties do not conclude a choice-of-law agreement relating to spouses’ maintenance obligations simultaneously with choice-of-law agreement relating to divorce or legal separation (eg, Rome III is not applicable at that Member State and the national rules do now allow to choose the law applicable to divorce or legal separation), on the basis of the current Model Clause the parties cannot foresee with certainty what law will be in fact applicable and applied to divorce or legal separation. This Model Clause may benefit the parties who wish that a single law is applicable to both divorce or legal separation and maintenance obligations, without the possibility to foresee such applicable law. The parties must be aware of the consequences of such agreement. On the formal requirements, see sections II.B. and II.D.

ii.  Divorce or Legal Separation and Property Regime Matrimonial Property Regime Regulation does not provide for the possibility to choose the law applicable to the parties’ divorce as the law for settlement of their property, as provided in the Hague Maintenance Protocol. As a result, the unification of the law applicable to divorce or legal separation with the law applicable to the matrimonial property regime is possible by means of a choice-of-law agreement when the same connecting factors are met, ie in accordance with Article 5 of the Rome III Regulation and Article  22 of the Matrimonial Property Regime Regulation97 (eg, the nationality of either spouse is the relevant connecting factor for choice-of-law agreements in both subject matters pursuant to Article  5(1)(c) of the Rome III Regulation and Article 22(1)(b) of Matrimonial Property Regime Regulation as well).

Example: Two future spouses (Nicolas, a Belgian national and Lisa, a German national) are habitually resident in France. They are going to marry in June 2021. One month before their marriage they decide to designate the law applicable to their divorce and property regime – they wish that the same law will be applicable to divorce or legal separation and matrimonial property regime.

97 This chapter will not tackle the question if the Rome III Regulation is applied in some Member States to registered partners as well. Therefore, the question of the ‘unification’ of applicable laws through choice-of-law agreements will be subsequently dealt with in relation to Matrimonial Property Regime Regulation.

694  Francesca Clara Villata and Lenka Válková

Nicolas and Lisa can designate: –– French law, according to Article 5(1)(a) of the Rome III Regulation (based on the common habitual residence of Nicolas and Lisa) and according to Article 22(1)(a) of the Matrimonial Property Regime Regulation (based on the common habitual residence or habitual residence of one of the spouses); –– Belgian or German law, according to Article 5(1)(c) of the Rome III Regulation and according to Article 22(1)(b) of the Matrimonial Property Regime Regulation (based on the nationality of either spouse). Model Clause: [Full name and identification details of party A] and [Full name and identification details of party B] irrevocably agree that [divorce and/or legal separation] and matrimonial property regime between them are governed by and determined only in accordance with [Specification of designated law] pursuant to Article 5 paragraph 1 litt. [___] of Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation and pursuant to Article 22 paragraph 1 litt. [___] of Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes. The same law will also govern the existence and validity of these choice-of-law sub-clauses or of any term thereof.98 The parties hereby agree that these clauses do not apply to maintenance obligations between them.99 Date signed: [______________] Date signed: [______________] Signature of the party: [______________] Signature of the party: [______________] Note: The law applicable to divorce or legal separation must coincide with the law applicable to the property regime by virtue of 5 Article of the Rome III Regulation and Article 22 of the Matrimonial Property Regime Regulation. Otherwise, the application of a single governing law as to divorce or legal separation and property regime will not be possible.

98 However, Art 6(2) of the Rome III Regulation and Art 24(2) of the Matrimonial Property Regime Regulation provide: ‘Nevertheless, a spouse, in order to establish that he did not consent, may rely upon the law of the country in which he has his habitual residence at the time the court is seised if it appears from the circumstances that it would not be reasonable to determine the effect of his conduct in accordance with the law specified in paragraph 1.’ 99 This sentence is optional and can be inserted into the clause if the parties intend to clarify that said clause does not cover maintenance obligations.

Choice-of-Court and Choice-of-Law Clauses  695

This Model Clause under the Rome III Regulation and Matrimonial Property Regime Regulation may be used only in the Member States which participate in the enhanced cooperation in the area of matters concerning divorce or legal separation in the area of matters concerning matrimonial property regime. In other States, their relevance will be assessed through their domestic PIL rules. On the formal requirements, see sections II.B. and II.E.i. above.

iii.  Divorce or Legal Separation, Maintenance between Spouses and Property Regime According to Article 8(1)(d) of the Hague Maintenance Protocol, the spouses may designate as to maintenance obligations between themselves, the law they also designated as applicable, or the law in fact applied, to their divorce or legal separation. Also, according to Article 8(1)(c) of the Hague Maintenance Protocol, the spouses may designate as the law applicable to maintenance obligations between themselves the law designated by the parties as applicable, or the law in fact applied, to their property regime. However, the coincidence of the law applicable to divorce or legal separation and property regime is more difficult to ensure. As stated in section III.B.ii., the unification of applicable laws through choice-of-law agreements is possible only if the same connecting factors are met in divorce or legal separation and property regime in accordance with Article 5 of the Rome III Regulation and Article 22 of the Matrimonial Property Regime Regulation.

Example: Two future spouses (Nicolas, a Belgian national and Lisa, a German national) are habitually resident in France. They are going to marry in 2021. One month before their marriage, they decide to designate the law applicable to their divorce or legal separation, maintenance and property regime and they wish that the same law will be applicable for all subject matters. Nicolas and Lisa can designate: –– French law, according to Article 5(1)(a) of the Rome III Regulation (based on the common habitual residence of Nicolas and Lisa) and according to Article  22(1)(a) of the Matrimonial Property Regime Regulation (based on the common habitual residence or habitual residence of one of the spouses);

696  Francesca Clara Villata and Lenka Válková

–– Belgian or German law, according to Article 5(1)(c) of the Rome III Regulation and according to Article 22(1)(b) of the Matrimonial Property Regime Regulation (based on the nationality of either spouse). Subsequently, according to Article  8(1)(c) and 8(1)(d) of the 2007 Hague Maintenance Protocol the same law may be designated by the parties as to their maintenance. Model Clause: [Full name and identification details of party A] and [Full name and identification details of party B] irrevocably agree that [divorce and/or legal separation], matrimonial property regime and maintenance obligations between them are governed by and determined only in accordance with [Specification of designated law] pursuant to Article 5 paragraph 1 litt. [___] of Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation, pursuant to Article  22 paragraph 1 litt. [___] of Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes and in accordance with Article 8 paragraph 1 litt. c) and d) of the Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations. The same law will also govern the existence and validity of this choice-of-law subclause or of any term thereof.100 Date signed: [______________] Date signed: [______________] Signature of the party: [______________] Signature of the party: [______________] Note: The law applicable to divorce or legal separation must coincide with the law applicable to the property regime by virtue of 5 Article of the Rome III Regulation and Article 22 of the Matrimonial Property Regime Regulation; otherwise, the application of a single governing law as to divorce or legal separation and property regime will not be possible. Articles 8(c) and 8(d)

100 However, Art 6(2) of the Rome III Regulation and Art 24(2) of the Matrimonial Property Regime Regulation provides: ‘Nevertheless, a spouse, in order to establish that he did not consent, may rely upon the law of the country in which he has his habitual residence at the time the court is seised if it appears from the circumstances that it would not be reasonable to determine the effect of his conduct in accordance with the law specified in paragraph 1.’ Also Art 8(4) of 2007 Hague Maintenance Protocol provides: ‘Notwithstanding the law designated by the parties in accordance with paragraph 1, the question of whether the creditor can renounce his or her right to maintenance shall be determined by the law of the state of the habitual residence of the creditor at the time of the designation.’

Choice-of-Court and Choice-of-Law Clauses  697

of the 2007 Hague Maintenance Protocol then permits connecting the law applicable to maintenance obligations with the law applicable to divorce, as well as to the law applicable to the property regime. This Model Clause referring to the Rome III Regulation and Matrimonial Property Regime Regulation may be used only in the Member States which participate in the enhanced cooperation in the area of matters concerning divorce or legal separation in the area concerning the matrimonial ­property regime. In other States, their relevance will be assessed through their domestic PIL rules. On the formal requirements, see sections II.B., II.D. and II.E.i. above.

iv.  Divorce or Legal Separation, Maintenance between Spouses, Property Regime and Succession a.  Divorce or Legal Separation, Maintenance between Spouses, Property Regime and Succession as a Whole As stated in section III.B.iii. above, the coincidence of the law applicable to divorce or legal separation, property regime and maintenance obligations is possible to obtain under specific terms. It is possible to reconcile the law applicable to divorce or legal separation with the law applicable to the property regime through a choice-of-law agreement on the basis of the application of the same connecting factor (habitual residence or nationality) in accordance with Article 5 of the Rome III Regulation and Article 22 of the Matrimonial Property Regime Regulation and Article 8(1)(c) and (d) of the 2007 Hague Maintenance Protocol. These instruments allow parties to designate as the law applicable to maintenance obligations the law designated by the parties as applicable, or in fact applied, to divorce or legal separation or property regime. The spouses may also wish that the single law applicable for divorce or legal separation, property regime and maintenance, be applied to their respective succession in order to unify all aspects of their family life in a single package of the applicable law. The spouses may designate the single law applicable to divorce or legal separation, property regime and maintenance. At the same time, they may designate the single law applicable to their respective succession, which will coincide with the law applicable to their property regime, and which will become effective upon the death of one of the spouses. However, as a consequence of the limited option available to a person designating the law applicable to his or her succession as a whole under Article 22 of the Succession Regulation, the spouses may only choose the law of their nationality as the law applicable also to: (i) their divorce pursuant to Article 5(c) of the Rome III Regulation; (ii) their property regime pursuant to Article 22(1)(b) of the Matrimonial Property Regime Regulation; and (iii) their maintenance obligations pursuant to Article 8(1)(a) and/or (c) and/or (d) of the Hague Maintenance Protocol.

698  Francesca Clara Villata and Lenka Válková Furthermore, the coincidence of the law applicable to their respective succession with the law applicable to their property regime in case of death of one of the spouses with different nationalities might often be only partial. In such a case, although the parties are entitled to choose the law of nationality of one of the spouses as the law applicable to their property regime according to Article  22(1)(b) of the Matrimonial Property Regime Regulation, their respective successions will be governed by the law of nationality of each of the spouses according to Article  22 of the Succession Regulation. Absent any choice of law with regard to succession matters, it would also be possible to reach the coincidence of the law applicable to their respective succession according to Article 21 of the Succession Regulation – whereby the connecting factor is habitual residence – with the law applicable to: (i) divorce, through the application of Article  5(1)(a) or (b) of the Rome III Regulation; (ii) maintenance, through the application of Article 8(1)(c) and (d) of the Hague Maintenance Protocol; or (iii) the property regime, through the application of Article  22(1)(a) of the Matrimonial Property Regime Regulation. However, in case of either spouse’s change of habitual residence before he or she dies, the applicable law in all subject matters cannot be unified any more.101

Example: Two future spouses (Jacopo, Italian national, and Marylou, French national) are habitually resident in Austria. They are going to marry in 2021. One month before their marriage, they decide to designate the law applicable to their divorce or legal separation, maintenance, property regime and they wish that the same law will be applicable for all subject matters. Moreover, they would like to determine that the law applicable to their respective succession coincides with the law governing their property regime. Jacopo and Marylou can designate as to divorce or legal separation, property regime and maintenance: –– Italian law, according to Article 5(1)(c) of the Rome III Regulation (based on the nationality of Jacopo), according to Article 22(1)(b) of the Matrimonial Property Regime Regulation (based on the nationality of Jacopo) and according to Article 8(1)(a) of the 2007 Hague Maintenance Protocol (based on the nationality of Jacopo) or 8(1)(c) of the 2007 Hague Maintenance Protocol (the law designated by the parties as applicable, or the law in fact applied, to their property regime) or 8(1)(d) of the 2007 Hague Maintenance Protocol (the law designated by the parties as applicable, or the law in fact applied, to their divorce or legal separation); or

101 As a consequence, this chapter does not contain examples and model clauses where the connecting factor is habitual residence.

Choice-of-Court and Choice-of-Law Clauses  699

–– French law, according to Article 5(1)(c) of the Rome III Regulation (based on the nationality of Marylou), according to Article 22(1)(b) of the Matrimonial Property Regime Regulation (based on the nationality of Marylou) and according to Article 8(1)(a) of the 2007 Hague Maintenance Protocol (based on the nationality of Marylou) or 8(1)(c) of the 2007 Hague Maintenance Protocol (based on the law designated by the parties as applicable, or the law in fact applied, to their property regime) or 8(1)(d) of the 2007 Hague Maintenance Protocol (based on the law designated by the parties as applicable, or the law in fact applied, to their divorce or legal separation). However, Jacopo may choose to govern his succession as a whole only the law of the state whose nationality he possesses, ie, Italian law and Marylou may choose to govern her succession as a whole only the law of the state whose nationality she possesses, ie, French law. We may imagine the following scenario: Jacopo and Marylou choose French law as the law applicable to their divorce or legal separation, property regime and maintenance obligations, whereas Jacopo chooses to govern his succession as a whole Italian law and Marylou chooses to govern her succession as a whole French law. After the marriage, Jacopo and Marylou stay together for 20 years (they do not divorce), but unfortunately in 2040 Jacopo dies. Therefore, Jacopo’s succession is governed by Italian law, but the spouses’ property regime is governed by French law. Model Clause No 1 must be completed with Model Clause No 2: Model Clause No 1: Declaration of spouse A/partner A as to the law applicable to his or her succession as a whole according to Article  22 of the Succession Regulation I, [Full name and identification details], the undersigned, hereby declare that I choose as the law to govern my succession as a whole the law of [Specification of designated law] whose nationality I possess in accordance with Article 22 of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession. Date signed: [______________] Signature: [______________]

700  Francesca Clara Villata and Lenka Válková

And Declaration of spouse B/partner B as to the law applicable to his or her succession as a whole according to Article  22 of the Succession Regulation I, [Full name and identification details], the undersigned, hereby declare that I choose as the law to govern my succession as a whole the law of [Specification of designated law] whose nationality I possess in accordance with Article 22 of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession. Date signed: [______________] Signature: [______________] and Model Clause No 2 Agreement of spouse A and spouse B as to the law applicable to divorce, maintenance and property regime according to Rome III Regulation, Maintenance Regulation and Matrimonial Property Regime Regulation [Full name and identification details of party A] and [Full name and identification details of party B] irrevocably agree that [divorce and/or legal separation], matrimonial property regime and maintenance obligations between them are governed by and determined only in accordance with [Specification of designated law] pursuant to Article 5 paragraph 1 litt. c) of Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation, pursuant to Article 22 paragraph 1 litt. b) of Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes and in accordance with Article  8 paragraph 1 litt. a) and c) and d) of the Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations. The same law will also govern the existence and validity of this choice-of-law subclause or of any term thereof.102 Date signed: [______________] Date signed: [______________] Signature of the party: [______________] Signature of the party: [______________]

102 However, Art 6(2) of the Rome III Regulation and Art 24(2) of the Matrimonial Property Regime ­Regulation provides: ‘Nevertheless, a spouse, in order to establish that he did not consent, may rely upon the

Choice-of-Court and Choice-of-Law Clauses  701

Note regarding Model Clause No 2: The law applicable to divorce or legal separation must coincide with the law applicable to the property regime and with the law applicable to succession by virtue, respectively, of Article 5(1)(c) of the Rome III Regulation and Article 22(1)(b) of the Matrimonial Property Regime Regulation and Article  22 of the Succession Regulation, which is based on the nationality. Otherwise, the application of a single law will not be possible. Articles 8(a), 8(c) and 8(d) of the 2007 Hague Maintenance Protocol then permits connecting the law applicable to maintenance obligations with the law applicable to divorce, as well as to the law applicable to property regime (and Article 8(a) permits to designate the law of any state of which either party is a national at the time of the designation). In case of death of one of the spouses, the coincidence of the law applicable to the succession with the law applicable to their property regime is ensured only in case of the spouses with the same nationalities. This Model Clause under the Rome III Regulation and Matrimonial Property Regime Regulation may be used only in the Member States which participate in the enhanced cooperation in the area of matters concerning divorce or legal separation in the area of matters concerning matrimonial property regime. In other States, their relevance will be assessed through their domestic PIL rules. On the formal requirements, see sections II.B., II.D., II.E.i. and II.G.ii.a. above.

b.  Divorce or Legal Separation, Maintenance between Spouses, Property Regime and Succession as a Whole and Disposition of Property upon Death This subsection entirely refers to the previous subsection III.B.iv.a. However, a further aspect of the succession must be taken into consideration. According to Article 24(2) of the Succession Regulation a person may choose as the law to govern his or her disposition of property upon death (regarding admissibility and substantive validity), the law which that person could have chosen in accordance with Article 22 of the Succession

law of the country in which he has his habitual residence at the time the court is seised if it appears from the circumstances that it would not be reasonable to determine the effect of his conduct in accordance with the law specified in paragraph 1.’ Also Art 8(4) of 2007 Hague Maintenance Protocol provides: ‘Notwithstanding the law designated by the parties in accordance with paragraph 1, the question of whether the creditor can renounce his or her right to maintenance shall be determined by the law of the state of the habitual residence of the creditor at the time of the designation.’

702  Francesca Clara Villata and Lenka Válková Regulation (the law of the state whose nationality he or she possesses). As stated in section II.G.ii.b. above, although a person chooses the law applicable to the admissibility and substantive validity of the disposition of property upon death by virtue of Article 24(2) of the Succession Regulation, the remaining issues, as listed in Article 23 of the Succession Regulation, are governed by lex successionis. Therefore, a further declaration on choice of law according to Article 22 of the Succession Regulation is necessary in order to unify the law applicable to the succession as a whole and to the disposition of property upon death.

Example: Two future spouses (Boris, a Bulgarian national and Marta, a Spanish national) are habitually resident in Portugal. They are going to marry in 2021. One month before their marriage, they decide to designate the law applicable to their divorce or legal separation, maintenance, property regime and they wish that the same law will be applicable to all subject matters. Moreover, they would like to make a unilateral will (disposition of property upon death other than an agreement as to succession) and to determine that the law applicable to their respective succession as whole, their disposition of property upon death (regarding admissibility and substantive validity of disposition of property upon death) coincide with the law governing their property regime. Boris and Marta can designate as to divorce or legal separation, property regime and maintenance obligations: –– Bulgarian law, according to Article 5(1)(c) of the Rome III Regulation (based on the nationality of Boris), according to Article 22(1)(b) of the Matrimonial Property Regime Regulation (based on the nationality of Boris) and according to Article 8(1)(a) of the 2007 Hague Maintenance Protocol (based on the nationality of Boris) or 8(1)(c) of the 2007 Hague Maintenance Protocol (the law designated by the parties as applicable, or the law in fact applied, to their property regime) or 8(1)(d) of the 2007 Hague Maintenance Protocol (the law designated by the parties as applicable, or the law in fact applied, to their divorce or legal separation); or –– Spanish law, according to Article 5(1)(c) of the Rome III Regulation (based on the nationality of Marta), according to Article 22(1)(b) of the Matrimonial Property Regime Regulation (based on the nationality of Marta) and according to Article 8(1)(a) of the 2007 Hague Maintenance Protocol (based on the nationality of Marta) or 8(1)(c) of the 2007 Hague Maintenance Protocol (the law designated by the parties as applicable, or the law in fact applied, to their property regime) or 8(1)(d) of the 2007 Hague Maintenance Protocol (the law designated by the parties as applicable, or the law in fact applied, to their divorce or legal separation).

Choice-of-Court and Choice-of-Law Clauses  703

However, Boris may choose to govern his succession as a whole according to Article  22 of the Succession Regulation and his disposition of property upon death (regarding admissibility and substantive validity of disposition of property upon death) according to Article 24(2) in connection with Article 22 of the Succession Regulation the law of the state whose nationality he possesses, ie, Bulgarian law. Marta may choose to govern her succession as a whole according to Article 22 of the Succession Regulation and her disposition of property upon death (regarding admissibility and substantive validity of disposition of property upon death) according to Article 24(2) in connection with Article 22 of the Succession Regulation the law of the state whose nationality she possesses, ie, Spanish law. We may imagine the following scenario: Boris and Marta choose Spanish law as the law applicable to divorce or legal separation, property regime and maintenance obligations, whereas Boris chooses Bulgarian law to govern his succession as a whole and Marta chooses Spanish law to govern her succession as a whole. After the marriage, Boris and Marta stay together for 20 years (they do not divorce), but unfortunately in 2040 Boris dies. As a consequence, Boris’ succession as a whole, as well as his disposition of property upon death (regarding admissibility and substantive validity of disposition of property upon death), are governed by Bulgarian law, whilst the spouses’ property regime is governed by Spanish law. Model Clause No 1 must be completed with Model Clause No 2: Model Clause No 1 Declaration of spouse A/partner A as to the law applicable to his or her succession as a whole and disposition of property upon death according to Article 22 and 24(2) of the Succession Regulation I, [Full name and identification details], the undersigned, hereby declare that I choose as the law to govern my succession as a whole and my disposition of property upon death as regards its admissibility and substantive validity, the law of [Specification of the designated law], whose nationality I possess, in accordance with Article  22 and Article  24 paragraph 2 of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession. Date signed: [______________] Signature: [______________]

704  Francesca Clara Villata and Lenka Válková

and Declaration of spouse B/partner B as to the law applicable to his or her succession as a whole and disposition of property upon death according to Article 22 and 24(2) of the Succession Regulation I, [Full name and identification details], the undersigned, hereby declare that I choose as the law to govern my succession as a whole and my disposition of property upon death as regards its admissibility and substantive validity, the law of [Specification of the designated law], whose nationality I possess,in accordance with Article  22 and Article  24 paragraph 2 of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession. Date signed: [______________] Signature: [______________] Model Clause No 2 Agreement of spouse A and spouse B as to the law applicable to divorce, maintenance, property regime according to Rome III Regulation, Maintenance Regulation and Matrimonial Property Regime Regulation [Full name and identification details of party A] and [Full name and identification details of party B] irrevocably agree that [divorce and/or legal separation], matrimonial property regime and maintenance obligations between them are governed by and determined only in accordance with [Specification of designated law] pursuant to Article 5 paragraph 1 litt. c) of Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation, pursuant to Article 22 paragraph 1 litt. b) of Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes and in accordance with Article 8 paragraph 1 litt. a) and c) and d) of the Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations. The same law will also govern the existence and validity of this choice-of-law sub-clause or of any term thereof.103

103 However, Art 6(2) of the Rome III Regulation and Art 24(2) of the Matrimonial Property Regime Regulation provides: ‘Nevertheless, a spouse, in order to establish that he did not consent, may rely upon the law of the country in which he has his habitual residence at the time the court is seised if it appears from the

Choice-of-Court and Choice-of-Law Clauses  705

Date signed: [______________] Date signed: [______________] Signature of the party: [______________] Signature of the party: [______________] On the note regarding the Model Clauses above see section III.B.iv.a. On the formal requirements, see sections II.B., II.D., II.E.i. and II.G.ii.a. above.

c.  Divorce or Legal Separation, Maintenance between Spouses, Property Regime and Succession as a Whole and Agreements as to Succession This subsection refers to the previous sub-section III.B.iv.a. However, a further aspect of the succession must be taken into consideration. Two spouses may wish to enter into an agreement as to succession with regard to both their estates (eg, a mutual will)104 and they may also wish to choose as the law to govern their agreement (regarding admissibility, substantive validity, binding effects between the parties, conditions for its dissolution) according to Article 25(3) of the Succession Regulation the law which either of them could choose in accordance with Article 22 of the Succession Regulation (the law of the state whose nationality he or she possesses at the time of making the choice or at the time of death). However, as stated in section II.G.ii.c. above, although the law governing an agreement as to succession (regarding admissibility, substantive validity, binding effects between the parties, conditions for its dissolution) may be designated by the parties, the remaining succession matters listed in Article 23 of the Succession Regulation will be governed by lex successionis. As a consequence, a further declaration from each spouse on choice of law according to Article 22 of the Succession Regulation is necessary in order to unify the law applicable to their respective succession as a whole and the law applicable to the agreement as to succession. The coincidence of the law applicable to succession as whole with the law applicable to agreements as to succession and to the spouses’ property regime in case of death of one of the spouses with different nationalities, might often be only partial. The parties are well entitled to choose the law of nationality of one of the spouses as the law applicable to their property regime according to Article  22(1)(b) of the Matrimonial Property Regime Regulation, as well as to the agreement as to succession (as regards its circumstances that it would not be reasonable to determine the effect of his conduct in accordance with the law specified in paragraph 1.’ Also Art 8(4) of 2007 Hague Maintenance Protocol provides: ‘Notwithstanding the law designated by the parties in accordance with paragraph 1, the question of whether the creditor can renounce his or her right to maintenance shall be determined by the law of the state of the habitual residence of the creditor at the time of the designation.’. 104 Should the spouses wish to enter into an agreement as to succession with regard to the estate of only one of them, the unification of the law governing that agreement with the lex successionis of the relevant spouse will be easily reached through a declaration of said spouse pursuant to Art 22 of the Succession Regulation, combined with a choice-of-law agreement between the spouses pursuant to Art 25(3) of the same Regulation.

706  Francesca Clara Villata and Lenka Válková admissibility, substantive validity and binding effects between themselves) according to Article 25(3) of the Succession Regulation. However, their respective succession as a whole will be governed by the law of the state of nationality of each spouse according to Article 22 of the Succession Regulation.

Example: Two future spouses (Patrik, a Slovenian national, and Daniela, a national of Malta) are habitually resident in Greece. They are going to marry in 2020. One month before their marriage, they decide to designate the law applicable to their divorce or legal separation, maintenance, property regime and they wish that the same law will be applicable to all subject matters. Moreover, they would like to sign a mutual will, assigning each other as sole heirs (an agreement as to succession) and to determine that the law applicable to their respective succession as whole and to their agreement as to succession (regarding admissibility, substantive validity, binding effects between the parties and conditions for its dissolution) coincides with the law governing their property regime. Patrik and Daniela can designate as to divorce or legal separation, property regime, maintenance and agreement as to succession: –– Slovenian law, according to Article  5(1)(c) of the Rome III Regulation (based on the nationality of Patrik), according to Article  22(1)(b) of the Matrimonial Property Regime Regulation (based on the nationality of Patrik), according to Article 8(1)(a) of the 2007 Hague Maintenance Protocol (based on the nationality of Patrik) or 8(1)(c) of the 2007 Hague Maintenance Protocol (the law designated by the parties as applicable, or the law in fact applied, to their property regime) or 8(1)(d) of the 2007 Hague Maintenance Protocol (the law designated by the parties as applicable, or the law in fact applied, to their divorce or legal separation) and according to Article 25(3) of the Succession Regulation (based on the nationality of Patrik); or –– Maltese law, according to Article 5(1)(c) of the Rome III Regulation (based on the nationality of Daniela), according to Article  22(1)(b) of the Matrimonial Property Regime Regulation (based on the nationality of Daniela), according to Article 8(1)(a) of the 2007 Hague Maintenance Protocol (based on the nationality of Daniela) or 8(1)(c) of the 2007 Hague Maintenance Protocol (the law designated by the parties as applicable, or the law in fact applied, to their property regime) or 8(1)(d) of the 2007 Hague Maintenance Protocol (the law designated by the parties as applicable, or the law in fact applied, to their divorce or legal separation) and according to Article 25(3) of the Succession Regulation (based on the nationality of Daniela).

Choice-of-Court and Choice-of-Law Clauses  707

However, Patrik may choose to govern his succession as a whole according to Article 22 of the Succession Regulation the law of the state whose nationality he possesses, ie, Slovenian law. Daniela may choose the to govern her succession as a whole according to Article 22 of the Succession Regulation the law of the state whose nationality she possesses, ie, Maltese law. We may imagine the following scenario: Patrik and Daniela choose Maltese law as the law applicable to divorce or legal separation, property regime, maintenance, and their agreement as to succession (regarding admissibility, substantive validity, binding effects between the parties, conditions for its dissolution), whereas Patrik chooses Slovenian law to govern his succession as a whole and Daniela chooses Maltese law to govern her succession as a whole. After the marriage, Patrik and Daniela stay together for 20 years (they do not divorce), but unfortunately in 2040 Patrik dies. As a consequence, Patrik’s succession as whole will be governed by Slovenian law, but the spouses’ property regime, maintenance obligations and agreement to succession will be governed by Maltese law. Model Clause No 1 must be completed with Model Clause No 2: Model Clause No 1 Declaration of spouse A/partner A as to the law applicable to his or her succession as a whole according to Article  22 of the Succession Regulation I, [Full name and identification details], the undersigned, hereby declare that I choose as the law to govern my succession as a whole the law of [Specification of the designated law], whose nationality I possess, in accordance with Article  22 of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession. Date signed: [______________] Signature: [______________]

708  Francesca Clara Villata and Lenka Válková

and Declaration of spouse B/partner B as to the law applicable to his or her succession as a whole according to Article  22 of the Succession Regulation I, [Full name and identification details], the undersigned, hereby declare that I choose as the law to govern my succession as a whole the law of [Specification of the designated law], whose nationality I possess, in accordance with Article 22 of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession. Date signed: [______________] Signature: [______________] and Agreement of spouse A and spouse B as to the law applicable to an agreement as to succession according to Article 25(3) of the Succession Regulation and as to the law applicable to divorce, maintenance, property regime according to the Rome III Regulation, Maintenance Regulation and Matrimonial Property Regime Regulation [Full name and identification details of party A] and [Full name and ­identification details of party B] hereby choose as the law to govern their agreement as to succession, as regards its admissibility, its substantive validity and its binding effects between them, including conditions for its dissolution, the law of [Specification of the designated law], whose nationality the parties herein possess, in accordance with Article 25 paragraph 3 of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession. The parties hereby irrevocably agree that [divorce and/or legal separation], matrimonial property regime and maintenance obligations between them are governed by and determined only in accordance with [Specification of designated law] pursuant to Article 5 paragraph 1 litt. c) of Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation, pursuant to Article 22 paragraph 1 litt. b) of Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction,

Choice-of-Court and Choice-of-Law Clauses  709

applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes and in accordance with Article 8 paragraph 1 litt. a), c) and d) of the Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations. The same law will also govern the existence and validity of this choice-of-law sub-clause or of any term thereof.105 Date signed: [______________] Date signed: [______________] Signature of the party: [______________] Signature of the party: [______________] On the note regarding the Model Clauses above see section III.B.iv.a. On the formal requirements, see sections II.B., II.D., II.E.i. and II.G.ii.a. above.

v.  Succession and Property Regime The previous sections III.B.iii. and III.B.iv. address, respectively: (i) the situation when the spouses wish (and are allowed) to determine a single law applicable to divorce or legal separation, property regime and maintenance in case of spouses’ possible termination of the marriage inter vivos; and (ii) when they would like to determine (to the maximum extent possible) a single law applicable to their succession, as well as to divorce or legal separation, property regime and maintenance in case of termination of the marriage caused by the death of either of them. Since, as resulted in section III.B.iv., in case of spouses of different nationality, only a partial unification of the law applicable to divorce or legal separation, property regime and maintenance with the law applicable to their respective succession is allowed, this section separately tackles the possibility to unify the law applicable only to succession and property regime through choiceof-law agreements, without considering the law applicable to their possible divorce or legal separation, property regime and maintenance. The substantive interest in the latter possibility stems from the various regimes and different characterisations provided under Member States’ substantive and conflict-of-law provisions for matrimonial property in case of death of one of the spouses.

105 However, Art 6(2) of the Rome III Regulation and Art 24(2) of the Matrimonial Property Regime Regulation provide: ‘Nevertheless, a spouse, in order to establish that he did not consent, may rely upon the law of the country in which he has his habitual residence at the time the court is seised if it appears from the circumstances that it would not be reasonable to determine the effect of his conduct in accordance with the law specified in paragraph 1.’ Also Art 8(4) of 2007 Hague Maintenance Protocol provides: ‘Notwithstanding the law designated by the parties in accordance with paragraph 1, the question of whether the creditor can renounce his or her right to maintenance shall be determined by the law of the state of the habitual residence of the creditor at the time of the designation.’

710  Francesca Clara Villata and Lenka Válková a.  Succession as a Whole and Property Regime The coincidence of the law applicable to succession as a whole with the law ­applicable to the property regime by means of a choice-of-law agreement may be ensured only if the same connecting factors (based on the nationality) apply in both subject matters. Then, • Article  22(1)(b) of both Matrimonial Property Regime Regulation or Regulation on the Property Consequences of Registered Partnerships provide for the possibility to designate the law of the state of nationality of either spouse/partner or future spouse/partner at the time the agreement is concluded; • according to Article  22 of the Succession Regulation a person may choose as the law to govern his or her succession as a whole the law of the state whose nationality he or she possesses at the time of making the choice or at the time of death (in case of multiple nationalities, said person may choose the law of any of the states whose nationality he or she possesses at the time of making the choice or at the time of death). However, as stated in section III.B.iv., the coincidence of the law applicable to the succession with the law applicable to the property regime in case of death of one of the spouses with different nationalities, might often be only partial. In such a case, the parties are entitled to choose the law of nationality of one of the spouses/partners as the law applicable to their property regime according to Article 22(1)(b) of both Matrimonial Property Regime Regulation or Regulation on the Property Consequences of Registered Partnerships. However, their succession will be governed by the law of nationality of each of the spouses/partners according to Article 22 of the Succession Regulation. It is also possible to unify the law applicable to succession with the law applicable to property regime through the application of Article 22(1)(a) of both Matrimonial Property Regime Regulation and the Regulation on the Property Consequences of Registered Partnerships and Article  21 of the Succession Regulation, whereby the connecting factor is habitual residence. However, in case that the spouse/partner’s change of his or her habitual residence before he or she dies, it will not be possible to unify the applicable law in both subject matters anymore.106 1.  Same Nationalities of Spouses/Partners Example No 1: Two future spouses, Lukas and Miriam, nationals of Germany, are habitually resident in Italy and they are going to marry in July 2021. One month before their marriage, they decide to designate the law applicable to their succession and to their property regime.

106 As a consequence, this chapter does not contain examples or model clauses where the relevant connecting factor is the habitual residence.

Choice-of-Court and Choice-of-Law Clauses  711

Lukas and Miriam may designate German law as the law governing their respective succession as a whole according to Article  22(1) of the Succession Regulation (based on the nationality of both Lukas and Miriam) and as the law as the law governing their property regime according to Article  22(1)(b) of Matrimonial Property Regime Regulation (based on the nationality of both Lukas and Miriam). Model Clause No 1 (a or b) must be completed with Model Clause No 2 (a or b): Model Clause No 1(a) Declaration of spouse A/partner A as to law the applicable to his or her succession as a whole according to Article  22 of the Succession Regulation I, [Full name and identification details], the undersigned, hereby declare that I choose as the law to govern my succession as a whole the law of [Specification of designated law] whose nationality I possess in accordance with Article 22 of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession. Date signed: [______________] Signature: [______________] and Declaration of spouse B/partner B as to law the applicable to his or her succession as a whole according to Article  22 of the Succession Regulation I, [Full name and identification details], the undersigned, hereby declare that I choose as the law to govern my succession as a whole the law of [Specification of designated law] whose nationality I possess in accordance with Article 22 of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession. Date signed: [______________] Signature: [______________] or

712  Francesca Clara Villata and Lenka Válková

Model Clause No 1(b) Declarations of spouse A/partner A and spouse B/partner B as to the law applicable to their respective succession as a whole according to Article 22 of the Succession Regulation I, [Full name and identification details of spouse A/partner A], the undersigned, hereby autonomously declare to choose as the law to govern my succession as a whole, and I, [Full name and identification details of spouse B/partner B], the undersigned, hereby autonomously declare to choose as the law to govern my succession as a whole, the law of [Specification of the designated law], whose nationality we possess, in accordance with Article  22 of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession. Date signed: [______________] Date signed: [______________] Signature: [______________] Signature: [______________] Note regarding Model Clause No 1(b): Article  22(3) of the Succession Regulation states that the choice shall be made expressly in a declaration in the form of a disposition of property upon death or shall be demonstrated by the terms of such a disposition. The choice of the law applicable to the succession of each spouse/partner can be made through their respective declarations embodied in separate documents, as demonstrated on Model Clause No 1(a) above. However, if the spouses/partners share the same nationality, the possibility of a joint (but still autonomous) choice of the law applicable to their respective succession as a whole by both spouses in a single document is not precluded if that form complies with the law listed in Article 27 of the Succession Regulation (on the formal requirements see section II.G.ii.a. above). and Model Clause No 2(a) Agreement of spouse A and spouse B (of same nationalities) as to the law applicable to their property regime according to Matrimonial Property Regime Regulation [Full name and identification details of party A] and [Full name and identification details of party B] irrevocably agree that matrimonial property regime

Choice-of-Court and Choice-of-Law Clauses  713

between them is governed by and determined only in accordance with [Specification of designated law] pursuant to Article 22 paragraph 1 litt. b) of Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes. The same law will also govern the existence and validity of this choice-of-law clause or of any term thereof.107 The parties hereby agree that this clause does not apply to maintenance obligations between them.108 Date signed: [______________] Date signed: [______________] Signature of the party: [______________] Signature of the party: [______________] or Model Clause No 2(b) Agreement of partner A and partner B (of same nationalities) as to the law applicable to their property regime according to Regulation on Property Consequences of Registered Partnerships [Full name and identification details of party A] and [Full name and identification details of party B] irrevocably agree that the property consequences of a registered partnership between them are governed by and determined only in accordance with [Specification of designated law] pursuant to Article 22 paragraph 1 litt. b) of the of Council Regulation (EU) 2016/1104 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of the property consequences of registered partnerships. The same law will also govern the existence and validity of this choice-of-law clause or of any term thereof.109

107 However, Art 24(2) of the Matrimonial Property Regime Regulation provides: ‘Nevertheless, a spouse, in order to establish that he did not consent, may rely upon the law of the country in which he has his habitual residence at the time the court is seised if it appears from the circumstances that it would not be reasonable to determine the effect of his conduct in accordance with the law specified in paragraph 1.’ 108 This sentence is optional and can be inserted into the clause if the parties intend to clarify that said clause does not cover maintenance obligations. 109 However, Art 24(2) of the Regulation on the Property Consequences of Registered Partnerships provides: ‘Nevertheless, a partner may, in order to establish that he did not consent, rely upon the law of the country in which he has his habitual residence at the time the court is seised if it appears from the circumstances that it would not be reasonable to determine the effect of his conduct in accordance with the law specified in paragraph 1.’

714  Francesca Clara Villata and Lenka Válková

The parties hereby agree that this clause does not apply to maintenance obligations between them.110 Date signed: [______________] Date signed: [______________] Signature of the party: [______________] Signature of the party: [______________] Note regarding Model Clauses: The law applicable to the property regime must coincide with the law applicable to succession by virtue of Article  22(1)(b) of the Matrimonial Property Regime Regulation or Regulation on the Property Consequences of Registered Partnerships and Article  22 of the Succession Regulation, which is based on the nationality. Otherwise, the application of a single law not be possible. In case of death of one of the spouses/partners, the coincidence of the law applicable to the succession with the law applicable to their property regime is ensured only in case of the spouses/partners with same nationalities. This Model Clauses under the Matrimonial Property Regime Regulation or Regulation on the Property Consequences of Registered Partnerships may be used only in the Member States which participate in the enhanced cooperation in the area of matters concerning property regime. In other States, their relevance will be assessed through their domestic PIL rules. On the formal requirements, see sections II.G.ii.a. and II.F.i or II.E.i. above.

2.  Different Nationalities of Spouses/Partners As anticipated, the unification of the law applicable to succession and property regime might often be only partial. In case of different nationalities of the spouses/partners, although the parties may designate the law of nationality of one of the spouses/­ partners as the law applicable to their property regime according to Article 22(1)(b) of the Matrimonial Property Regime Regulation or Regulation on the Property Consequences of Registered Partnerships, Article  22 of the Succession Regulation enables each spouse/partner to designate as the law applicable to his or her succession only the law of the state whose nationality he or she possesses. As a consequence, when two spouses/­partners with different nationalities choose as the law applicable to their property regime the law of nationality of spouse A and the spouse/partner B dies as the first, the lex successionis differs from the law applicable to the property regime. If the spouses/partners, however, would prefer that the law applicable to succession

110 This sentence is optional and can be inserted into the clause if the parties intend to clarify that said clause does not cover maintenance obligations.

Choice-of-Court and Choice-of-Law Clauses  715 and property regime will be the same, the model clause (and the example) below can be considered. However, it must be well kept in mind that their agreement would be ineffective, should an issue concerning their property regime arise before the death of either spouse/partner.

Example No 2: Two future spouses, Lisa, a Dutch national, and Max, a Belgian national, are habitually resident in Luxembourg and they are going to marry in August 2021. One month before their marriage, they decide to designate the law applicable to their respective succession as a whole and to their property regime. Lisa can designate Dutch law as the law governing her succession as a whole according to Article 22(1) of the Succession Regulation (based on the nationality of Lisa). Max can designate Belgian law as the law governing his succession as a whole according to Article 22(1) of the Succession Regulation (based on the nationality of Max). The future spouses can also designate Dutch law or Belgian law as the law governing their property regime according to Article 22(1)(b) of Matrimonial Property Regime Regulation (respectively, based on the nationality of Lisa or Max). By this choice, the coincidence between the law applicable to their respective succession as a whole and the law governing their property regime would be only partial, but Lisa and Max strongly wish that the law governing the succession as a whole of the first of them who will die and the law governing their property regime issues related to said succession will coincide. Therefore, they agree that their future matrimonial property regime will be governed, pursuant to Article  22(1)(b) of Matrimonial Property Regime Regulation, in accordance with Dutch law whose nationality Lisa possesses, if the day of Lisa’s death precedes the day of Max’s death, but in accordance with Belgian law whose nationality Max possesses, if the day of Max’s death precedes the day of Lisa’s death. Model Clause No 1 must be completed with Model Clause No 2 (a or b): Model Clause No 1 Declaration of spouse A/partner A as to the law applicable to his or her succession as a whole according to Article  22 of the Succession Regulation I, [Full name and identification details], the undersigned, hereby declare that I choose as the law to govern my succession as a whole the law of [Specification of designated law] whose nationality I possess in accordance with Article 22 of Regulation (EU) No 650/2012 of the European Parliament and of the Council

716  Francesca Clara Villata and Lenka Válková

of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession. Date signed: [______________] Signature: [______________] and Declaration of spouse B/partner B as to the law applicable to his or her succession as a whole according to Article  22 of the Succession Regulation I, [Full name and identification details], the undersigned, hereby declare that I choose as the law to govern my succession as a whole the law of [Specification of designated law] whose nationality I possess in accordance with Article 22 of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession. Date signed: [______________] Signature: [______________] and Model Clause No 2(a) Agreement of spouse A and spouse B (of different nationalities) as to the law applicable to their property regime according to the Matrimonial Property Regime Regulation [Full name and identification details of spouse A] and [Full name and identification details of spouse B], irrevocably agree that matrimonial property regime between them is governed by and determined pursuant to Article 22 paragraph 1 litt. b) of Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regime: –– in accordance with law of [Specification of designated law] whose nationality [Full name of spouse A] possesses, if the day of death of [Full name of spouse A] precedes the day of death of [Full name of spouse B]; or –– in accordance with law of [Specification of designated law] whose nationality [Full name of spouse B] possesses, if the day of death of [Full name of spouse B] precedes the day of death of [Full name of spouse A].

Choice-of-Court and Choice-of-Law Clauses  717

The same law will also govern the existence and validity of this choice-of-law clause or of any term thereof.111 The parties hereby agree that this clause does not apply to maintenance obligations between them.112 Date signed: [______________] Date signed: [______________] Signature of the party: [______________] Signature of the party: [______________] or Model Clause No 2(b) Agreement of partner A and partner B (of different nationality) as to the law applicable to their property regime according to the Regulation on Property Consequences of Registered Partnerships [Full name and identification details of partner A] and [Full name and identification details of partner B], irrevocably agree that the property consequences of a registered partnership between them are governed by and determined pursuant to Article 22 paragraph 1 litt. b) of the of Council Regulation (EU) 2016/1104 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of the property consequences of registered partnerships: –– in accordance with law of [Specification of designated law] whose nationality [Full name of partner A] possesses, if the day of death of [Full name of partner A] precedes the day of death of [Full name of partner B]; or –– in accordance with law of [Specification of designated law] whose nationality [Full name of partner B] possesses, if the day of death of [Full name of partner B] precedes the day of death of [Full name of partner A]. The same law will also govern the existence and validity of this choice-of-law clause or of any term thereof.113

111 However, Art 24(2) of the Matrimonial Property Regime Regulation provides: ‘Nevertheless, a spouse may, in order to establish that he did not consent, rely upon the law of the country in which he has his habitual residence at the time the court is seised if it appears from the circumstances that it would not be reasonable to determine the effect of his conduct in accordance with the law specified in paragraph 1.’. 112 This sentence is optional and can be inserted into the clause if the parties intend to clarify that said clause does not cover maintenance obligations. 113 However, Art 24(2) of the Regulation on the Property Consequences of Registered Partnerships provides: ‘Nevertheless, a partner may, in order to establish that he did not consent, rely upon the law of the country in which he has his habitual residence at the time the court is seised if it appears from the circumstances that it would not be reasonable to determine the effect of his conduct in accordance with the law specified in paragraph 1.’

718  Francesca Clara Villata and Lenka Válková

The parties hereby agree that this clause does not apply to maintenance obligations between them.114 Date signed: [______________] Date signed: [______________] Signature of the party: [______________] Signature of the party: [______________] Note regarding Model Clauses: The law applicable to the property regime must coincide with the law applicable to succession by virtue of Article  22(1)(b) of the Matrimonial Property Regime Regulation or Regulation on the Property Consequences of Registered Partnerships and Article  22 of the Succession Regulation, which is based on the nationality. Otherwise, the application of a single law not be possible. In case of death of one of the spouses/partners, the coincidence of the law applicable to the succession with the law applicable to their property regime is ensured only in case of the spouses/partners with same nationalities. Therefore, the spouses/partners of different nationalities may agree that their future property regime will be governed, pursuant to Article 22(1)(b) of Matrimonial Property Regime Regulation or Regulation on the Property Consequences of Registered Partnerships, in accordance with law whose nationality spouse/partner A possesses, if the day of spouse/partner A death precedes the day of spouse/partner B death, but in accordance with law whose nationality spouse/partner B possesses, if the day of spouse/partner B death precedes the day of spouse/partner A death This Model Clauses under the Matrimonial Property Regime Regulation or Regulation on the Property Consequences of Registered Partnerships may be used only in the Member States which participate in the enhanced cooperation in the area of matters concerning property regime. In other States, their relevance will be assessed through their domestic PIL rules. On the formal requirements, see sections II.G.ii.a. and II.F.i or II.E.i. above.

b.  Choice of Law – Succession as a Whole, Disposition of Property upon Death and Property Regime The law applicable to succession as a whole and property regime of the spouses or partners by means of a choice-of-law agreement is possible to unify also in this case,

114 This sentence is optional and can be inserted into the clause if the parties intend to clarify that said clause does not cover maintenance obligations.

Choice-of-Court and Choice-of-Law Clauses  719 only if the same connecting factors (based on the nationality) apply to a disposition of property upon death, succession as a whole and property regime of the spouses or partners. Article 22(1)(b) of both the Matrimonial Property Regime Regulation and Regulation on the Property Consequences of Registered Partnerships provide for the possibility to designate the law of the state of nationality of either partner or future partner at the time the agreement is concluded. According to Article 24(2) of the Succession Regulation a person may choose as the law to govern his or her disposition of property upon death (regarding admissibility and substantive validity), the law which that person could have chosen in accordance with Article 22 of the Succession Regulation (the law of the state whose nationality he or she possesses). However, as stated in section II.G.ii.b. above, although a person chooses the law applicable to the admissibility and substantive validity of the disposition of property upon death by virtue of Article 24(2) of the Succession Regulation, the remaining issues as listed in Article 23 of the Succession Regulation are governed by lex successionis. Therefore, a further declaration on choice of law according to Article 22 of the Succession Regulation is necessary in order to unify the law applicable to the succession as a whole and with the law applicable to a disposition of property upon death. 1.  Same Nationalities of Spouses/Partners

Example No 1: Thomas and Elena, both nationals of Spain, are habitually resident in Portugal. They are getting married in 2021 and one month before their marriage they both decide to make a unilateral will (disposition of property upon death other than an agreement as to succession). They would like to know which law they can choose to govern their dispositions of property upon death (regarding admissibility and substantive validity of disposition of property upon death). They wish that the same law will also be applicable to their respective succession as a whole, as well as to their property regime. Thomas and Elena can choose Spanish law to govern their respective succession as a whole according to Article 22 of the Succession Regulation and their dispositions of property upon death (regarding admissibility and substantive validity of disposition of property upon death) according to Article  24(2) in conjunction with Article 22 of the Succession Regulation (based on the nationalities of Thomas and Elena at the time of their choice). The future spouses may also designate Spanish law as the law governing their matrimonial property regime according to Article 22(1)(b) of the Matrimonial Property Regime Regulation (based on the nationality of Thomas and Elena).

720  Francesca Clara Villata and Lenka Válková

Model Clause No 1 (a or b) must be completed with Model Clause No 2 (a or b): Model Clause No 1: Declaration of spouse A/partner A as to the law applicable to his or her succession as a whole and disposition of property upon death according to Article 22 and 24(2) of the Succession Regulation I, [Full name and identification details], the undersigned, hereby declare that I choose as the law to govern my succession as a whole and my disposition of property upon death as regards its admissibility and substantive validity, the law of [Specification of the designated law], whose nationality I possess, in accordance with Article  22 and Article  24 paragraph 2 of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession. Date signed: [______________] Signature: [______________] and Declaration of spouse B/partner B as to the law applicable to his or her succession as a whole and disposition of property upon death according to Article 22 and 24(2) of the Succession Regulation I, [Full name and identification details], the undersigned, hereby declare that I choose as the law to govern my succession as a whole and my disposition of property upon death as regards its admissibility and substantive validity, the law of [Specification of the designated law], whose nationality I possess, in accordance with Article  22 and Article  24 paragraph 2 of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession. Date signed: [______________] Signature: [______________]

Choice-of-Court and Choice-of-Law Clauses  721

or Model Clause No 1(b) Declarations of spouse A/partner A and spouse B/partner B as to the law applicable to their respective succession as a whole and disposition of property upon death according to Article 22 and 24(2) of the Succession Regulation [Full name and identification details of spouse A/partner A], the undersigned, hereby autonomously declare to choose as the law to govern my succession as a whole and my disposition of property upon death as regards its admissibility and substantive validity, and [Full name and identification details of spouse B/partner B], the undersigned, hereby autonomously declare to choose as the law to govern my succession as a whole and my disposition of property upon death as regards its admissibility and substantive validity, the law of [Specification of the designated law], whose nationality we possess, in accordance with Article 22 and Article 24 paragraph 2 of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession. Date signed: [______________] Date signed: [______________] Signature: [______________] Signature: [______________] Note regarding Model Clause No 1(b): Article 22(3) of the Succession Regulation states that the choice shall be made expressly in a declaration in the form of a disposition of property upon death or shall be demonstrated by the terms of such a disposition. The choice of the law applicable to succession as a whole and to a disposition of property upon death can be made by each spouse/partner through a declaration in separate documents as demonstrated in Model Clause No 1(a) above. However, if the spouses share the same nationality, the possibility of a joint (but still autonomous) choice of the law applicable to their respective successions as a whole and to their dispositions of property upon death by both spouses in a declaration incorporated in a single document is not precluded if its form complies with the law listed in Article 27 of the Succession Regulation (on the formal requirements see section II.G.ii.a. above).

722  Francesca Clara Villata and Lenka Válková

and Model Clause No 2(a) Agreement of spouse A and spouse B (of same nationalities) as to the law applicable to their property regime according to Matrimonial Property Regime Regulation [Full name and identification details of party A] and [Full name and identification details of party B] irrevocably agree that matrimonial property regime between them is governed by and determined only in accordance with [Specification of designated law] pursuant to Article 22 paragraph 1 litt. b) of Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes. The same law will also govern the existence and validity of this choice-of-law clause or of any term thereof.115 The parties hereby agree that this clause does not apply to maintenance ­obligations between them.116 Date signed: [______________] Date signed: [______________] Signature of the party: [______________] Signature of the party: [______________] or Model Clause No 2(b) Agreement of partner A and partner B (of same nationalities) as to the law applicable to their property regime according to Regulation on Property Consequences of Registered Partnerships [Full name and identification details of party A] and [Full name and identification details of party B] irrevocably agree that the property consequences of a registered partnership between them are governed by and determined only in accordance with [Specification of designated law] pursuant to Article 22 paragraph 1 litt. b) of the of Council Regulation (EU) 2016/1104 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law

115 However, Art 24(2) of the Matrimonial Property Regime Regulation provides: ‘Nevertheless, a spouse, in order to establish that he did not consent, may rely upon the law of the country in which he has his habitual residence at the time the court is seised if it appears from the circumstances that it would not be reasonable to determine the effect of his conduct in accordance with the law specified in paragraph 1.’ 116 This sentence is optional and can be inserted into the clause if the parties intend to clarify that said clause does not cover maintenance obligations.

Choice-of-Court and Choice-of-Law Clauses  723

and the recognition and enforcement of decisions in matters of the property consequences of registered partnerships. The same law will also govern the existence and validity of this choice-of-law clause or of any term thereof.117 The parties hereby agree that this clause does not apply to maintenance obligations between them.118 Date signed: [______________] Date signed: [______________] Signature of the party: [______________] Signature of the party: [______________] On the note regarding the Model Clauses above see section III.B.v.a.1) On the formal requirements, see sections II.G.ii.a. and II.F.i. or II.E.i. above.

2.  Different Nationalities of Spouses/Partners The unification of the law to applicable to succession and with the law applicable property regime might often be only partial. In case of spouses/partners of different nationalities, the parties may designate the law of nationality of one of them as the law applicable to their property regime according to Article  22(1)(b) of the Matrimonial Property Regime Regulation or of the Regulation on the Property Consequences of Registered Partnerships. However, Articles 22 and 24(2) of the Succession Regulation enable each spouse/partner to designate as the law applicable to the succession only the law of the party’s nationality. As a consequence, if the spouses/partners with different nationalities choose as the law applicable to their property regime the law of nationality of spouse A and spouse/partner B dies as the first, the lex successionis as to the latter’s succession as a whole and as to his or her disposition of property upon death (regarding admissibility and substantive validity), will differ from the law applicable to the couple’s property regime. Nevertheless, if the spouses/partners would prefer that the law applicable to their respective succession and property regime will coincide in any case, the model clause (as well as the example) below can be considered. However, it must be kept in mind that their agreement would be ineffective, should an issue related to the property regime arise before the death of either spouse/partner.

117 However, Art 24(2) of the Regulation on the Property Consequences of Registered Partnerships provides: ‘Nevertheless, a partner may, in order to establish that he did not consent, rely upon the law of the country in which he has his habitual residence at the time the court is seised if it appears from the circumstances that it would not be reasonable to determine the effect of his conduct in accordance with the law specified in paragraph 1.’ 118 This sentence is optional and can be inserted into the clause if the parties intend to clarify that said clause does not cover maintenance obligations.

724  Francesca Clara Villata and Lenka Válková Example No 2 (different nationalities): Two future spouses, Sarah, a Dutch national, and Tim, a Belgian national, are habitually resident in Luxembourg. They are getting married in 2021 and one month before their marriage they decide to make a unilateral will (disposition of property upon death other than an agreement as to succession). They would like to know which law can be chosen to govern their respective dispositions of property upon death (regarding admissibility and substantive validity of disposition of property upon death), succession as a whole and future property regime. Sarah can designate Dutch law as the law governing her succession as a whole and disposition of property upon death according to Article  22(1) and Article 24 of the Succession Regulation (based on the nationality of Sarah). Tim can designate Belgian law as the law governing his succession as a whole and disposition of property upon death according to Article 22(1) and Article 24 of the Succession Regulation (based on the nationality of Tim). Sarah and Tim might designate Dutch law or Belgian law as the law governing their property regime according to Article 22(1)(b) of Matrimonial Property Regime Regulation (based on the nationality of Sarah or Tim). By this choice, the coincidence between applicable law as to the succession and property regime would only be partial, but Sarah and Tim wish that the law governing their respective succession (including disposition of property upon death) and matrimonial property regime will be the same. As a consequence, they wish to agree that their future matrimonial property regime will be governed, pursuant to Article  22(1)(b) of Matrimonial Property Regime Regulation, in accordance with Dutch law whose nationality Sarah possesses, if the day of Sarah’s death precedes the day of Tim’s death, but in accordance with Belgian law whose nationality Tim possesses, if the day of Tim’s death precedes the day of Sarah’s death. Model Clause No 1 must be completed with Model Clause No 2 (a or b): Model Clause No 1 Declaration of spouse A/partner A as to the law applicable to his or her succession as a whole and disposition of property upon death according to Article 22 and 24(2) of the Succession Regulation I, [Full name and identification details], the undersigned, hereby declare that I choose as the law to govern my succession as a whole and my disposition of property upon death as regards its admissibility and substantive validity, the law of [Specification of the designated law], whose nationality I possess, in accordance with Article 22 and Article 24 paragraph 2 of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012

Choice-of-Court and Choice-of-Law Clauses  725

on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession. Date signed: [______________] Signature: [______________] and Declaration of spouse B/partner B as to the law applicable to his or her succession as a whole and disposition of property upon death according to Article 22 and 24(2) of the Succession Regulation I, [Full name and identification details], the undersigned, hereby declare that I choose as the law to govern my succession as a whole and my disposition of property upon death as regards its admissibility and substantive validity, the law of [Specification of the designated law], whose nationality I possess, in accordance with Article 22 and Article 24 paragraph 2 of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession. Date signed: [______________] Signature: [______________] and Model Clause No 2(a) Agreement of spouse A and spouse B (of different nationalities) as to the law applicable to their property regime according to the Matrimonial Property Regime Regulation [Full name and identification details of spouse A] and [Full name and identification details of spouse B], irrevocably agree that matrimonial property regime between them is governed by and determined pursuant to Article 22 paragraph 1 litt. b) of Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regime: –– in accordance with law of [Specification of designated law] whose nationality [Full name of spouse A] possesses, if the day of death of [Full name of spouse A] precedes the day of death of [Full name of spouse B]; or

726  Francesca Clara Villata and Lenka Válková

–– in accordance with law of [Specification of designated law] whose nationality [Full name of spouse B] possesses, if the day of death of [Full name of spouse B] precedes the day of death of [Full name of spouse A]. The same law will also govern the existence and validity of this choice-of-law clause or of any term thereof.119 The parties hereby agree that this clause does not apply to maintenance ­obligations between them.120 Date signed: [______________] Date signed: [______________] Signature of the party: [______________] Signature of the party: [______________] or Model Clause No 2(b) Agreement of partner A and partner B (of different nationalities) as to the law applicable to their property regime according to the Regulation on Property Consequences of Registered Partnerships [Full name and identification details of partner A] and [Full name and identification details of partner B], irrevocably agree that the property consequences of a registered partnership between them are governed by and determined pursuant to Article 22 paragraph 1 litt. b) of the of Council Regulation (EU) 2016/1104 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of the property consequences of registered partnerships: –– in accordance with law of [Specification of designated law] whose nationality [Full name of partner A] possesses, if the day of death of [Full name of partner A] precedes the day of death of [Full name of partner B]; or –– in accordance with law of [Specification of designated law] whose nationality [Full name of partner B] possesses, if the day of death of [Full name of partner B] precedes the day of death of [Full name of partner A].

119 However, Art 24(2) of the Matrimonial Property Regime Regulation provides: ‘Nevertheless, a spouse may, in order to establish that he did not consent, rely upon the law of the country in which he has his habitual residence at the time the court is seised if it appears from the circumstances that it would not be reasonable to determine the effect of his conduct in accordance with the law specified in paragraph 1.’ 120 This sentence is optional and can be inserted into the clause if the parties intend to clarify that said clause does not cover maintenance obligations.

Choice-of-Court and Choice-of-Law Clauses  727

The same law will also govern the existence and validity of this choice-of-law clause or of any term thereof.121 The parties hereby agree that this clause does not apply to maintenance obligations between them.122 Date signed: [______________] Date signed: [______________] Signature of the party: [______________] Signature of the party: [______________] On the note regarding the Model Clauses above see section III.B.v.a.2. On the formal requirements, see sections II.G.ii.a. and II.F.i. or II.E.i. above.

c.  Succession as a Whole, Agreements as to Succession and Property Regime The unification of the applicable laws by means of a choice-of-law agreement in all subject matters is possible also in this case, but only if the same connecting factors (based on the nationality) apply with reference to their respective successions as a whole, an agreement as to succession and property regime. Article  22(1)(b) of both the Matrimonial Property Regime Regulation and the Regulation on the Property Consequences of Registered Partnerships provides for the possibility to designate the law of the state of nationality of either partner or future ­partner at the time the agreement is concluded. According to Article 25(3) of the Succession Regulation, the parties may also choose as the law to govern their agreement as to succession (regarding admissibility, substantive validity, binding effects between the parties, conditions for its dissolution), the law which one of the persons whose estate is involved could have chosen in accordance with Article 22 of the Succession Regulation (the law of the state whose nationality he or she possesses at the time of making the choice or at the time of death). However, as stated in section II.G.ii.c. above, although the law governing the agreement as to succession (regarding admissibility, substantive validity, binding effects between the parties, conditions for its dissolution) may be designated by the spouses, the remaining succession matters listed in Article 23 of the Succession Regulation will be governed by respective lex successionis. As a consequence, a further declaration from each spouse

121 However, Art 24(2) of the Regulation on the Property Consequences of Registered Partnerships provides: ‘Nevertheless, a partner may, in order to establish that he did not consent, rely upon the law of the country in which he has his habitual residence at the time the court is seised if it appears from the circumstances that it would not be reasonable to determine the effect of his conduct in accordance with the law specified in paragraph 1.’ 122 This sentence is optional and can be inserted into the clause if the parties intend to clarify that said clause does not cover maintenance obligations.

728  Francesca Clara Villata and Lenka Válková on choice of law according to Article 22 of the Succession Regulation is necessary in order to unify the law applicable to their respective succession as a whole and to the agreement as to succession. 1.  Same Nationalities of Spouses/Partners Example No 1: Two future spouses, David and Natalia (both German nationals), are habitually resident in Italy. They plan to agree on a mutual will, assigning each other as sole heirs (an agreement as to succession). Therefore, they would like to know which law they can choose to govern their agreement as to succession (regarding admissibility, substantive validity, binding effects between the parties, conditions for its dissolution) and they wish that the same law will be applicable to their respective succession as a whole, as well as to their property regime (they are getting married in 2021). David and Natalia can choose German law to govern their respective succession as a whole according to Article 22 of the Succession Regulation and their agreement as to succession (regarding admissibility, substantive validity, binding effects between the parties, conditions for its dissolution) according to Article 25(3) in connection with Article 22 of the Succession Regulation (based on the nationality of David or Natalia at the time of the choice). They can also designate German law for their future matrimonial property regime according to Article 22(1)(b) of the Matrimonial Property Regime Regulation. Model Clause No 1 must be completed with Model Clause No 2 (a or b): Model Clause No 1 Declaration of spouse A/partner A as to the law applicable to his or her succession as a whole according to Article  22 of the Succession Regulation I, [Full name and identification details], the undersigned, hereby declare that I choose as the law to govern my succession as a whole the law of [Specification of the designated law], whose nationality I possess, in accordance with Article 22 of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession. Date signed: [______________] Signature: [______________]

Choice-of-Court and Choice-of-Law Clauses  729

and Declaration of spouse B/partner B as to the law applicable to his or her succession as a whole according to Article  22 of the Succession Regulation I, [Full name and identification details], the undersigned, hereby declare that I choose as the law to govern my succession as a whole the law of [Specification of the designated law], whose nationality I possess, in accordance with Article 22 of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession. Date signed: [______________] Signature: [______________] and Model Clause No 2 a) Agreement of spouse A and spouse B as to the law applicable to an agreement as to succession according to Article  25(3) of the Succession Regulation and as to the law applicable to their property regime according to the Matrimonial Property Regime Regulation [Full name and identification details of party A] and [Full name and identification details of party B] hereby choose as the law to govern their agreement as to succession, as regards its admissibility, its substantive validity and its binding effects between them, including conditions for its dissolution, the law of [Specification of the designated law], whose nationality the parties herein possess, in accordance with Article 25 paragraph 3 of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession. The parties hereby irrevocably agree that matrimonial property regime between them is governed by and determined only in accordance with [Specification of designated law] pursuant to Article 22 paragraph 1 litt. b) of Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes.

730  Francesca Clara Villata and Lenka Válková

The same law will also govern the existence and validity of this choice-of-law clause or of any term thereof.123 The parties hereby agree that this clause does not apply to maintenance obligations between them.124 Date signed: [______________] Date signed: [______________] Signature of the party: [______________] Signature of the party: [______________] or b) Agreement of partner A and partner B as to the law applicable to an agreement as to succession according to Article  25(3) of the Succession Regulation and as to the law applicable to their property regime according to the Regulation on Property Consequences of Registered Partnerships [Full name and identification details of party A] and [Full name and identification details of party B] hereby choose as the law to govern their agreement as to succession, as regards its admissibility, its substantive validity and its binding effects between them, including conditions for its dissolution, the law of [Specification of the designated law], whose nationality the parties herein possess, in accordance Article 25 paragraph 3 of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession. The parties hereby irrevocably agree that the property consequences of a registered partnership between them are governed by and determined only in accordance with [Specification of designated law] pursuant to Article 22 paragraph 1 litt. b) of the of Council Regulation (EU) 2016/1104 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, ­applicable law and the recognition and enforcement of decisions in matters of the property consequences of registered partnerships.

123 However, Art 24(2) of the Matrimonial Property Regime Regulation provides: ‘Nevertheless, a spouse, in order to establish that he did not consent, may rely upon the law of the country in which he has his habitual residence at the time the court is seised if it appears from the circumstances that it would not be reasonable to determine the effect of his conduct in accordance with the law specified in paragraph 1.’ 124 This sentence is optional and can be inserted into the clause if the parties intend to clarify that said clause does not cover maintenance obligations.

Choice-of-Court and Choice-of-Law Clauses  731

The same law will also govern the existence and validity of this choice-of-law clause or of any term thereof.125 Date signed: [______________] Date signed: [______________] Signature of the party: [______________] Signature of the party: [______________]

OR the spouses may choose Model Clause No 3 (a or b) instead of Model Clause 1 and 2 above: Model Clause No 3: a) Agreement of spouse A and spouse B as to the law applicable to their respective succession as a whole and to an agreement as to succession according to, respectively, Article 22 and Article 25(3) of the Succession Regulation and as to the law applicable to their property regime according to the Matrimonial Property Regime Regulation [Full name and identification details of spouse A/partner A], the undersigned, hereby autonomously declare to choose as the law to govern my succession as a whole and the agreement as to succession, as regards its admissibility, its substantive validity and its binding effects, including conditions for its dissolution, and [Full name and identification details of spouse B/partner B], the undersigned, hereby autonomously declare to choose as the law to govern my succession as a whole and the agreement as to succession, as regards its admissibility, its substantive validity and its binding effects between them, including conditions for its dissolution, the law of [Specification of the designated law], whose nationality we possess, in accordance with Article  22 and Article  25 paragraph 3 of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession.

125 However, Art 24(2) of the Regulation on the Property Consequences of Registered Partnerships provides: ‘Nevertheless, a partner may, in order to establish that he did not consent, rely upon the law of the country in which he has his habitual residence at the time the court is seised if it appears from the circumstances that it would not be reasonable to determine the effect of his conduct in accordance with the law specified in paragraph 1.’

732  Francesca Clara Villata and Lenka Válková

The parties hereby irrevocably agree that the property consequences of a registered partnership between them are governed by and determined only in accordance with [Specification of designated law] pursuant to Article 22 paragraph 1 litt. b) of the of Council Regulation (EU) 2016/1104 of ­ 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, ­applicable law and the recognition and enforcement of decisions in matters of the property consequences of registered partnerships. The same law will also govern the existence and validity of this choice-of-law clause or of any term thereof.126 Date signed: [______________] Date signed: [______________] Signature: [______________] Signature: [______________] b) Agreement of partner A and partner B as to the law applicable to their respective succession as a whole and to an agreement as to succession according to, respectively, Article 22 and Article 25(3) of the Succession Regulation and as to the law applicable to their property regime according to the Regulation on Property Consequences of Registered Partnerships [Full name and identification details of spouse A/partner A], the undersigned, hereby autonomously declare to choose as the law to govern my succession as a whole and the agreement as to succession, as regards its admissibility, its substantive validity and its binding effects, including conditions for its dissolution, and [Full name and identification details of spouse B/partner B], the undersigned, hereby autonomously declare to choose as the law to govern my succession as a whole and the agreement as to succession, as regards its admissibility, its substantive validity and its binding effects between them, including conditions for its dissolution, the law of [Specification of the designated law], whose nationality we possess, in accordance with Article  22 and Article  25 paragraph 3 of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession.

126 However, Art 24(2) of the Regulation on the Property Consequences of Registered Partnerships provides: ‘Nevertheless, a partner may, in order to establish that he did not consent, rely upon the law of the country in which he has his habitual residence at the time the court is seised if it appears from the circumstances that it would not be reasonable to determine the effect of his conduct in accordance with the law specified in paragraph 1.’

Choice-of-Court and Choice-of-Law Clauses  733

The parties hereby irrevocably agree that the property consequences of a registered partnership between them are governed by and determined only in accordance with [Specification of designated law] pursuant to Article 22 paragraph 1 litt. b) of the of Council Regulation (EU) 2016/1104 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of the property consequences of registered partnerships. The same law will also govern the existence and validity of this choice-of-law clause or of any term thereof.127 Date signed: [______________] Date signed: [______________] Signature: [______________] Signature: [______________] Note regarding Model Clauses No 3: Article  22(3) of the Succession Regulation states that the choice shall be made expressly in a declaration in the form of a disposition of property upon death or shall be demonstrated by the terms of such a disposition. The choice of the law applicable to the succession as a whole can be made through a declaration of each spouse/partner in a separate document as demonstrated on Model Clause No 1(a) and 1(b) above. However, the possibility of a joint (but still autonomous) choice of the law applicable to their respective succession as a whole and to an agreement as to succession by both parties in a single declaration is not precluded if that form complies with the law listed in Article 27 of the Succession Regulation (on the formal requirements, see section II.G.ii.a. above). On the note regarding the Model Clauses above see section III.B.v.a.1. On the formal requirements, see sections II.G.ii.a. and II.F.i. or II.E.i. above.

2.  Different Nationalities of Spouses/Partners The unification of the law to applicable to succession and to the property regime might often be only partial. In case of spouses/partners of different nationalities, although the parties may designate the law of nationality of one of the spouses/partners as the law applicable to: (i) their property regime according to Article 22(1)(b) of the Matrimonial Property Regime Regulation or Regulation on the Property Consequences of Registered

127 However, Art 24(2) of the Regulation on the Property Consequences of Registered Partnerships provides: ‘Nevertheless, a partner may, in order to establish that he did not consent, rely upon the law of the country in which he has his habitual residence at the time the court is seised if it appears from the circumstances that it would not be reasonable to determine the effect of his conduct in accordance with the law specified in paragraph 1.’

734  Francesca Clara Villata and Lenka Válková Partnerships; and to (ii) an agreement as to succession, as regards its admissibility, substantive validity and binding effects (‘agreements as to succession of several persons’) according to Article  25(3) of the Succession Regulation, Article  22 of the Succession Regulation enables each spouse/partner to designate as the law applicable to his or her succession only the law of his or her proper nationality. As a consequence, if the spouses/partners of different nationalities choose as the law applicable to their property regime the law of nationality of spouse A and spouse/partner B dies as the first, the lex successionis as to the succession as whole differs from the law applicable to the property regime and to the agreement as to succession. In case that the spouses/partners would prefer that the law applicable to succession and property regime is same, the model clause below can be considered (see also the example below). However, it must be kept in mind that their agreement would be ineffective, should an issue related to the property regime arise before the death of either spouse/partner.

Example No 2: Two future spouses, Nina, a Finnish national, and William, a Swedish national, are habitually resident in Belgium. They wish to sign a mutual will, assigning each other as sole heirs (an agreement as to succession). They would like to know which law they can choose to govern their agreement as to succession (regarding admissibility, substantive validity, binding effects between the parties, conditions for its dissolution) and they wish that the same law will be applicable to their succession as a whole and to their property regime (they are getting married in 2020). Nina can designate Finnish law as the law governing her succession as a whole according to Article 22 of the Succession Regulation (based on the nationality of Nina). William can designate Swedish law as the law governing his succession as a whole according to Article 22 of the Succession Regulation (based on the nationality of William). Nina and William could designate Finnish law or Swedish law as the law governing their property regime according to Article 22(1)(b) of Matrimonial Property Regime Regulation and as the law governing their agreement as to succession (regarding admissibility, substantive validity, binding effects between the parties, conditions for its dissolution) (based on the nationalities of Nina and William). By this choice, the coincidence between applicable laws as to the succession and property regime would be only partial, but Nina and William wish that the law governing their respective succession as a whole, their agreement as to succession and matrimonial property regime will be the same. As a consequence, they wish to agree that their future matrimonial property regime and their agreement as to succession will be governed pursuant to Article 22(1)(b) of Matrimonial Property Regime Regulation and Article 25(3)

Choice-of-Court and Choice-of-Law Clauses  735

of the Succession Regulation in accordance with Finnish law whose nationality Nina possesses, if the day of Nina’s death precedes the day of William’s death, but in accordance with Swedish law whose nationality William possesses, if the day of William’s death precedes the day of Nina’s death. Model Clause No 1 must be completed with Model Clause No 2 (a or b): Model Clause No 1 Declaration of spouse A/partner A as to the law applicable to his or her succession as a whole according to Article  22 of the Succession Regulation I, [Full name and identification details], the undersigned, hereby declare that I choose as the law to govern my succession as a whole the law of [Specification of the designated law], whose nationality I possess, in accordance with Article  22 of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession. Date signed: [______________] Signature: [______________] and Declaration of spouse B/partner B as to the law applicable to his or her succession as a whole according to Article  22 of the Succession Regulation I, [Full name and identification details], the undersigned, hereby declare that I choose as the law to govern my succession as a whole the law of [Specification of the designated law], whose nationality I possess, in accordance with Article 22 of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession. Date signed: [______________] Signature: [______________]

736  Francesca Clara Villata and Lenka Válková

And Model Clause No 2 a) Agreement of spouse A and spouse B as to the law applicable to an agreement as to succession according to Article  25(3) of the Succession Regulation and as to the law applicable to their property regime according to the Matrimonial Property Regime Regulation [Full name and identification details of party A] and [Full name and identification details of party B] hereby choose as the law to govern their matrimonial property regime and the agreement as to succession (as regards its admissibility, its substantive validity and its binding effects between them, including conditions for its dissolution), –– the law of [Specification of the designated law], whose nationality [Full name of spouse A] possesses, if the day of death of [Full name of spouse A] precedes the day of death of [Full name of spouse B]; or –– the law of [Specification of the designated law], whose nationality [Full name of spouse B] possesses, if the day of death of [Full name of spouse B] precedes the day of death of [Full name of spouse A]. in accordance with Article 25 paragraph 3 of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession and in accordance with Article  22 paragraph 1 litt. b) of Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regime. The same law will also govern the existence and validity of this choice-of-law clause or of any term thereof.128 The parties hereby agree that this clause does not apply to maintenance obligations between them.129 Date signed: [______________] Date signed: [______________] Signature of the party: [______________] Signature of the party: [______________]

128 However, Art 24(2) of the Matrimonial Property Regime Regulation provides: ‘Nevertheless, a spouse may, in order to establish that he did not consent, rely upon the law of the country in which he has his habitual residence at the time the court is seised if it appears from the circumstances that it would not be reasonable to determine the effect of his conduct in accordance with the law specified in paragraph 1.’ 129 This sentence is optional and can be inserted into the clause if the parties intend to clarify that said clause does not cover maintenance obligations.

Choice-of-Court and Choice-of-Law Clauses  737

Or b) Agreement of partner A and partner B as to the law applicable to an agreement as to succession according to Article  25(3) of the Succession Regulation and as to the law applicable to their property regime according to the Regulation on Property Consequences of Registered Partnerships [Full name and identification details of party A] and [Full name and identification details of party B] hereby choose as the law to govern the property consequences of a registered partnership between them and their agreement as to succession, as regards its admissibility, its substantive validity and its binding effects between them, including conditions for its dissolution, –– the law of [Specification of designated law] whose nationality [Full name of partner A] possesses, if the day of death of [Full name of partner A] precedes the day of death of [Full name of partner B]; or –– the law of [Specification of designated law] whose nationality [Full name of partner B] possesses, if the day of death of [Full name of partner B] precedes the day of death of [Full name of partner A]. in accordance Article  25 paragraph 3 of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession and in accordance with Article 22 paragraph 1 litt. b) of the of Council Regulation (EU) 2016/1104 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of the property consequences of registered partnerships. The same law will also govern the existence and validity of this choice-of-law clause or of any term thereof.130 Date signed: [______________] Date signed: [______________] Signature of the party: [______________] Signature of the party: [______________] On the note regarding the Model Clauses above see section III.B.v.a.1. On the formal requirements, see sections II.G.ii.a. and II.F.i. or II.E.i. above.

130 However, Art 24(2) of the Regulation on the Property Consequences of Registered Partnerships provides: ‘Nevertheless, a partner may, in order to establish that he did not consent, rely upon the law of the country in which he has his habitual residence at the time the court is seised if it appears from the circumstances that it would not be reasonable to determine the effect of his conduct in accordance with the law specified in paragraph 1.’

738  Francesca Clara Villata and Lenka Válková

IV. Unifying Ius and Forum A.  Divorce or Legal Separation The unity between ius and forum through a choice-of-law agreement according to Article 5 of the Rome III Regulation and a choice-of-court agreement according to the Brussels  IIa Regulation is not possible to achieve, since as stated above (under section III.A.i.), a choice-of-court agreement in proceedings relating to divorce or legal separation is not allowed under the Brussels IIa Regulation. The simplest solution for unity between ius and forum represents a choice-of-law agreement concluded according to Article 5(1)(d) of the Rome III Regulation, which enables the parties to opt for the lex fori.

Example: Two Austrian spouses, David and Vanessa, are habitually resident in Slovenia. They wish that whatever court will have jurisdiction over their divorce should apply its own substantive law on divorce. As a consequence, they concluded choice-of-law agreement according to Article  5(1)(d) of the Rome III Regulation. In 2017, David moved to Austria. Subsequently, the relationship between David and Vanessa ended. They can seise: –– a Slovenian or German court according to Article 3(1)(a) of the Brussels IIa Regulation; or –– an Austrian court according to Article 3(1)(b) of the Brussels IIa Regulation. The court which will have jurisdiction to decide over their divorce will apply the law of the forum by virtue of choice-of-law agreement concluded between David and Vanessa according to Article 5(1)(d) of the Rome III Regulation. Model Clause: [Full name and identification details of party A] and [Full name and identification details of party B] irrevocably agree, that in accordance with Article 5 paragraph 1 litt. d) of Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation, [divorce and/or legal separation] between them is governed by the law of the court exercising jurisdiction by virtue of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters

Choice-of-Court and Choice-of-Law Clauses  739

and the matters of parental responsibility.131 The same law will also govern the existence and validity of this choice-of-law clause or of any term thereof.132 The parties hereby agree that this clause does not apply to maintenance obligations and/or property consequences of the marriage between the parties.133 Date signed: [______________] Date signed: [______________] Signature of the party: [______________] Signature of the party: [______________] Note: Due to the lack of choice-of-court rules relating to divorce or legal separation or marriage annulment under the Brussels IIa Regulation and Brussels  IIter Regulation, on the basis of the present Model Clause the parties before the dispute will not be able to foresee with certainty what law will be in fact applicable to divorce or legal separation.134 This model clause may benefit the parties who wish that the competent court to apply its own law, without the possibility to foresee such applicable law. However, such agreement may even encourage abusive litigation tactics (rush to court, see footnote 2), as either spouse may rush to file the claim before the court that will apply the most beneficial substantive rules concerning divorce or legal separation. The parties must be aware of the consequences of such agreement. This Model Clause under the Rome III Regulation may be used only in the Member States which participate in the enhanced cooperation in the area of matters concerning divorce or legal separation. In other States, their relevance will be assessed through their domestic PIL rules. If the parties intend to conclude the choice-of-law agreement after the dispute has arisen, please see the sample Model Clause in section II.B. On the formal requirements, see section II.B.

131 On the legal proceedings instituted on or after 1 August 2022, see n 9. 132 However, Art 6(2) of the Rome III Regulation provides: ‘Nevertheless, a spouse, in order to establish that he did not consent, may rely upon the law of the country in which he has his habitual residence at the time the court is seised if it appears from the circumstances that it would not be reasonable to determine the effect of his conduct in accordance with the law specified in paragraph 1.’ 133 This sentence is optional and can be inserted into the clause if the parties intend to clarify that said clause does not cover maintenance obligations and/or property consequences of the marriage. 134 This is result of plurality of jurisdictional grounds for divorce laid down in Art 3 of the Brussels  IIa Regulation.

740  Francesca Clara Villata and Lenka Válková

B. Maintenance It is possible to ensure unity between the ius and forum in proceedings on maintenance obligations through a choice-of-law and choice-of court agreement, but only if the connecting factors chosen among those provided in Article 4 of the Maintenance Regulation coincide with the jurisdictional ground chosen among those provided in Article 8 of the 2007 Hague Maintenance Protocol (eg, the nationality of either spouse as a connecting factor under Article  4(1)(a) of the Maintenance Regulation and as a jurisdictional ground under Article 8(1)(b) of the 2007 Hague Maintenance Protocol; or habitual residence of either spouse as a connecting factor under Article 4(1)(b) of the Maintenance Regulation and as jurisdictional ground under Article 8(1)(a) of the 2007 Hague Maintenance Protocol).

Example: Maria is a Spanish national, whereas Tomas is a Slovak national, and they live in Portugal. They are going to marry and would like to conclude a choice-of-court and a choice-of-law agreement regarding any dispute relating to their reciprocal maintenance obligations in order to ensure unity between ius and forum. Maria and Tomas can designate: –– a Spanish court, according to Article 4(1)(b) of the Maintenance Regulation and Spanish law according to Article 8(1)(a) of the 2007 Hague Maintenance Protocol (based on the nationality of Maria); –– a Slovak court, according to Article 4(1)(b) of the Maintenance Regulation and Slovak law according to Article 8(1)(a) of the 2007 Hague Maintenance Protocol (based on the nationality of Tomas); –– a Portuguese court according to Article  4(1)(a) of the Maintenance Regulation and Portuguese law according to Article  8(1)(b) of the 2007 Hague Maintenance Protocol (based on the habitual residence of Maria and Tomas at the time of the designation). Model Clause: I. Jurisdiction [Full name and identification details of party A] and [Full name and identification details of party B] irrevocably agree that [Identification of a specific Member State court/Identification of the courts of a Member State] is/are to have exclusive jurisdiction to settle any disputes in matters relating to maintenance obligations which have arisen or may arise between them in accordance with Article 4 paragraph 1 litt. [___] of Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition

Choice-of-Court and Choice-of-Law Clauses  741

and enforcement of decisions and cooperation in matters relating to maintenance obligations and no other court(s) is/are to have jurisdiction. 135 II. Governing law The maintenance obligations between the parties hereof are governed by and determined only in accordance with [Specification of designated law] pursuant to Article 8 paragraph 1 litt. [___] of the Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations. The same law will also govern the existence and validity of this choice-of-law clause or of any term thereof.136 The parties hereby declare that they are fully informed and aware of the consequences of the designation [Specification of designated law].137 The parties hereby agree that this clause does not apply to property consequences of the marriage/registered partnership between them.138 Date signed: [______________] Date signed: [______________] Signature of the party: [______________] Signature of the party: [______________] Note: The court designated in Clause I by virtue of Article 4 of the Maintenance Regulation and the law designated in Clause II, according to Article 8 of the Hague Maintenance Protocol, must belong to the same Member State, otherwise the application of lex fori is excluded. On the formal requirements, see sections II.C. and II.D. above.

135 The exclusivity of the jurisdiction conferred by the agreement is determined by Art 4(1) last indent, however the parties may agree otherwise, ie on a non-exclusive jurisdiction clause (the parties are not prevented from litigating in other courts). On non-exclusive jurisdiction clauses, see section II.C. 136 However, Art 8(4) of 2007 Hague Maintenance Protocol provides: ‘Notwithstanding the law designated by the parties in accordance with paragraph 1, the question of whether the creditor can renounce his or her right to maintenance shall be determined by the law of the state of the habitual residence of the creditor at the time of the designation.’ 137 Art 8(5) of the 2007 Hague Maintenance Protocol provides that, unless at the time of the designation the parties were fully informed and aware of the consequences of their designation, the law designated by the parties shall not apply where the application of that law would lead to manifestly unfair or unreasonable consequences for any of the parties. As a consequence, the parties may expressly declare that they are fully informed and aware of the consequences of designation of such law; however a court could disregard the parties’ statement. 138 This sentence is optional and can be inserted into the clause if the parties intend to clarify that said clause does not cover property consequences of the marriage/registered partnership.

742  Francesca Clara Villata and Lenka Válková

C.  Divorce or Legal Separation and Maintenance The concentration of divorce or legal separation and maintenance proceedings and the application of the law of the forum is possible by means of a choice-of-court and a choice-of-law agreement. The proceedings relating to divorce or legal separation according to Article  3 of the Brussels  IIa Regulation (when the spouses file a joint application for divorce or legal separation; or when a court is seised unilaterally only by one of the spouses) may be unified with proceedings relating to maintenance and the application of the law of the forum may be reached by relying on the following rules: • Article  4(1)(c)(i) of the Maintenance Regulation, which enables spouses to agree on a court for maintenance matters which has jurisdiction to settle their dispute in matrimonial matters; • Article 5(1)(d) of the Rome III Regulation, which permits spouses to designate the lex fori in proceedings relating to divorce or legal separation; • Article  8(1)(d) of the 2007 Hague Maintenance Protocol which allows the maintenance creditor and debtor to designate at any time the law designated by the parties as applicable, or the law in fact applied, to their divorce.

Example: Two Bulgarian spouses, Iva and Peter, used to live in Luxembourg. They concluded a choice-of-court agreement according to Article  4(1)(c)(i) of the Maintenance Regulation and a choice-of-law agreement according to Article 5(1)(d) of the Rome III Regulation and according to Article 8(1)(d) of the 2007 Hague Maintenance Protocol at the time they married. They concluded these agreements because they wished that the same court competent for divorce would also have jurisdiction over maintenance obligations and that said court would apply its substantive law to the merits of a whole dispute. In 2015, Peter moved to France. Iva and Peter may seise a court: –– in Luxembourg, according to Article 3(1)(a) fourth indent in the event of a joint application (based on the habitual residence of Iva), according to ­Article 3(1)(a) second indent (based on the last habitual spouses’ residence, insofar as Iva still resides there), according to Article 3(1)(a) third indent, if Peter autonomously files an application for divorce (based on the habitual residence of Iva – as a respondent). –– in France, according to Article  3(1)(a) fourth indent in the event of a joint application (based on the habitual residence of Peter), according to 3(1)(a) third indent if Iva autonomously files an application for divorce (based on the habitual residence of Peter – as a respondent), according to Article  3(1)(a) fifth indent if Peter autonomously files an application for divorce (based on the habitual residence of the Peter as applicant, since he resided there for at least a year immediately before the application was made);

Choice-of-Court and Choice-of-Law Clauses  743

–– in Bulgaria, according to Article  3(1)(b) of the Brussels  IIa Regulation (based on the nationality of both Iva and Peter). As a consequence, as to their maintenance obligations the spouses must seise the court which has jurisdiction to settle their dispute in matrimonial matters in accordance with the choice-of-court agreement concluded pursuant to Article 4(1)(c)(i) of the Maintenance Regulation. Since Iva and Peter designated the law of the forum as the law applicable to their divorce, according to Article  5(1)(d) of the Rome III Regulation and according to Article  8(1)(d) of the Hague Maintenance Protocol, the seised court (ie, Luxembourgish, French or Bulgarian court) will apply the lex fori. Model Clause: I. Jurisdiction [Full name and identification details of party A] and the [Full name and identification details of party B] irrevocably agree that the court which has jurisdiction to settle their dispute in matrimonial matters in accordance with the Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility,139 is to have exclusive jurisdiction to settle any disputes in matters relating to maintenance ­obligations, which have arisen or may arise between them in accordance with Article  4 paragraph 1 litt. c) (ii) of Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations and no other court is to have jurisdiction.140 II. Governing law The parties hereof irrevocably agree that: –– divorce and/or legal separation between them is governed by the law of the court exercising jurisdiction by virtue of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, in accordance with Article 5 paragraph 1 litt. d) of Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation,

139 On the legal proceedings instituted on or after 1 August 2022, see n 9. 140 The exclusivity of the jurisdiction conferred by the agreement is determined in Art 4(1) last indent of the Maintenance Regulation; however, the parties may agree otherwise.

744  Francesca Clara Villata and Lenka Válková

–– maintenance obligations between them are governed by the law designated by the parties in sub-clause a) as applicable to their divorce or legal separation in accordance with Article 8 paragraph 1 litt. d) of the Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations. The same law will also govern the existence and validity of these choice-of-law clauses or of any term thereof. 141 This clause does not apply to property consequences of the marriage between the parties.142 Date signed: [______________] Date signed: [______________] Signature of the party: [______________] Signature of the party: [______________] Note: Due to the lack of choice-of-court rules relating to divorce or legal separation or marriage annulment under the Brussels  IIa Regulation and Brussels  IIter Regulation, on the basis of the current Model Clause the parties before the dispute will not be able foresee with certainty what court will actually exercise jurisdiction over maintenance matters between them and what law will be in fact applicable to divorce or legal separation and maintenance.143 This model clause may benefit the parties who have the intention to concentrate the proceedings relating to divorce or legal separation and maintenance obligations in front of one court that will apply its own law, without the possibility to foresee such competent court and applicable law. However, such agreement may even encourage abusive litigation tactics (rush to court, please see footnote 2), as either spouse may rush to file the claim before the court that will apply the most beneficial substantive rules concerning divorce or legal separation and maintenance obligations. The parties must be aware of the consequences of such agreement.

141 However, Art 6(2) of the Rome III Regulation provides: ‘Nevertheless, a spouse, in order to establish that he did not consent, may rely upon the law of the country in which he has his habitual residence at the time the court is seised if it appears from the circumstances that it would not be reasonable to determine the effect of his conduct in accordance with the law specified in paragraph 1.’ Also Art 8(4) of 2007 Hague Maintenance Protocol provides: ‘Notwithstanding the law designated by the parties in accordance with paragraph 1, the question of whether the creditor can renounce his or her right to maintenance shall be determined by the law of the state of the habitual residence of the creditor at the time of the designation.’. 142 This sentence is optional and can be inserted into the clause if the parties intend to clarify that said clause does not cover property consequences of the marriage. 143 This is the result of the plurality of jurisdictional grounds for divorce laid down in Art 3 of the Brussels IIa Regulation and of the fact that maintenance ‘follows’ divorce.

Choice-of-Court and Choice-of-Law Clauses  745

The sub-Model Clause referring the Rome III Regulation may be used only in the Member States which participate in the enhanced cooperation in the area of matters concerning divorce or legal separation. In other States, their relevance will be assessed through their domestic PIL rules. If the parties intend to conclude a choice-court agreement for maintenance matters and a choice-of-law agreement on divorce or legal separation and maintenance matters after the dispute has arisen, please see Model Clause in sections II.B., II.C. and II.D. On the formal requirements, see sections II.B., II.C. and II.D. above.

D.  Property Regime Under certain circumstances, parallelism between ius and forum on the basis of choice-of-law and choice-of court agreements is enabled in the Matrimonial Property Regime Regulation and Regulation on the Property Consequences of Registered Partnerships. This parallelism may be obtained when the parties agree that the courts of the Member State whose law is applicable pursuant to Article 22 (based on the habitual residence of either spouse or partner or nationality of either spouse or partner) have exclusive jurisdiction to rule on their matrimonial property regime matters.

Example: Property consequences of registered partnerships Two Greek partners, Dimitris and Nick, live in Sweden. They are planning to enter into a registered partnership in July 2021. In June 2021, they decide to designate a competent court and the law ­applicable to their property regime. They wish that the court seised as to their future property regime will apply the law of the forum. Dimitris and Nick may designate the court whose law is applicable pursuant to Article 22. The partners may designate: –– a Greek court and Greek law, according to Article  7 and according to Article  22(1)(b) of the Regulation on the Property Consequences of ­Registered Partnerships (based on the common nationality of Dimitris and Nick); –– Swedish law, according to Article 22(1)(a) of the Regulation on the Property Consequences of Registered Partnerships (based on the habitual residence of spouse Dimitris and Nick).

746  Francesca Clara Villata and Lenka Válková

Model Clause No 1(a) Choice of law according to Article  22 and choice of court according to Article 7(1) of the Matrimonial Property Regime Regulation I. Jurisdiction [Full name and identification details of party A] and [Full name and identification details of party B] irrevocably agree that [Identification of a specific Member State court/Identification of the courts of a Member State], whose law is applicable pursuant to Article  22 of Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes (‘Regulation (EU) 2016/1103’) as provided in Clause II. hereunder, is/are to have exclusive jurisdiction to rule on matters of their matrimonial property regime in accordance with Article  7 paragraph 1 of Regulation (EU) 2016/1103 and no other court(s) is/are to have jurisdiction.144 II. Governing law The matrimonial property regime between the parties hereof is governed by and determined only in accordance with [Specification of designated law] pursuant to Article  22 paragraph 1 litt. [___] of Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes. The same law will also govern the existence and validity of this choice-of-law clause or of any term thereof.145 The parties hereby agree that this clause does not apply to maintenance obligations between them.146 Date signed: [______________] Date signed: [______________] Signature of the party: [______________] Signature of the party: [______________]

144 The exclusivity of the jurisdiction conferred by the agreement is established in Art 7(1) of the Matrimonial Property Regime Regulation. 145 However, Art 24(2) of the Matrimonial Property Regime Regulation provides: ‘Nevertheless, a spouse may, in order to establish that he did not consent, rely upon the law of the country in which he has his habitual residence at the time the court is seised if it appears from the circumstances that it would not be reasonable to determine the effect of his conduct in accordance with the law specified in paragraph 1.’ 146 This sentence is optional and can be inserted into the clause if the parties intend to clarify that said clause does not cover maintenance obligations.

Choice-of-Court and Choice-of-Law Clauses  747

Model Clause No 1(b) Choice of court according to Article 7(1) absent a choice of law according to Article 22 of the Matrimonial Property Regime Regulation [Full name and identification details of party A] and [Full name and ­identification details of party B] irrevocably agree that the court, whose law is applicable pursuant to Article 26 of Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes (‘Regulation (EU) 2016/1103’), is to have exclusive jurisdiction to rule on matters of their matrimonial property regime in accordance with Article  7 of Regulation (EU) 2016/1103 and no other court is to have jurisdiction. Date signed: [______________] Date signed: [______________] Signature of the party: [______________] Signature of the party: [______________] Note regarding Model Clause No 1(b): Absent a choice-of-law agreement according to Article 22 of the Matrimonial Property Regime Regulation, on the basis of the current Model Clause the parties before the dispute will not be able to foresee with certainty what court will actually exercise jurisdiction. This model clause may benefit the parties who wish that the court with jurisdiction over the property regime will apply its own substantive law to the merits of the case, with no possibility to foresee such competent court and applicable law. The parties must be aware of the consequences of such agreement. Note regarding Model Clause No 1(a) and No 1(b): This section deals only with a choice of court under Article 7, ie, where no court of a Member State has jurisdiction pursuant to Article 4 (automatic connection with the succession proceedings) or Article 5 (automatic connection or connection on the basis of the choice-of-court with the divorce proceedings) or in cases other than those provided for in those Articles (eg, when the property regime represents the main issue of the proceedings). However, by virtue of Article 5(1) of the Matrimonial Property Regime Regulation the proceedings concerning property regime are dealt simultaneously with divorce or legal separation or marriage annulment proceedings in front of Member State court which is seised according to first four indents of Article 3(1)(a) and according to Article 3(1)(b) of the Brussels IIa Regulation, the parties cannot derogate from such a court and designate another competent court according to Article  7 of the Matrimonial Property Regime Regulation (Article  7 provides that only ‘In cases which are covered by Article 6 the parties may designate a court according to Article 7.’)

748  Francesca Clara Villata and Lenka Válková

As a consequence, a choice-of-court agreement, which is not in conformity with Article 4 and 5, will be ineffective.147 Model Clause No 2(a) Choice of law according to Article 22 and choice of court according to Article 7(1) of the Regulation on Property Regime on Consequences of Registered Partnership I. Jurisdiction [Full name and identification details of party A] and [Full name and identification details of party B] irrevocably agree that [Identification of a specific Member State court/Identification of the courts of a Member State], whose law is applicable pursuant to Article 22 of Council Regulation (EU) 2016/1104 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of the property consequences of registered partnerships (‘Regulation (EU) 2016/1104’) as provided in Clause II. hereunder, is/are to have exclusive jurisdiction to rule on the property consequences of their registered partnership in accordance with Article 7 paragraph 1 of Regulation (EU) 2016/1104 and no other court(s) is/are to have jurisdiction.148 II. Governing law The property consequences of a registered partnership between the parties hereof are governed by and determined only in accordance with [Specification of designated law] in accordance with Article  22 paragraph 1 litt. [___] of Regulation (EU) 2016/1104. The same law will also govern the existence and validity of this choice-of-law clause or of any term thereof.149 The parties hereby agree that this clause does not apply to maintenance obligations between them.150 Date signed: [______________] Date signed: [______________] Signature of the party: [______________] Signature of the party: [______________]

147 M C De Lambertye-Autrand, ‘Article 7’ in S Corneloup, V Égéa, E Gallant, F Jault-Seseke (eds), Le droit européen des régimes patrimoniaux des couples. Commentaire des règlements 2016/1103 et 2016/1104 (Société de législation compare, 2018) 105–109; Bruno (n 36) 90. 148 The exclusivity of the jurisdiction conferred by the agreement is not determined by the Regulation on the Property Consequences of Registered Partnerships, as a consequence the parties could insert the exclusivity of the jurisdiction into the clause unless they do not intend to attribute jurisdiction also to the courts of other Member States. 149 However, Art 24(2) of the Regulation on the Property Consequences of Registered Partnerships provides: ‘Nevertheless, a partner may, in order to establish that he did not consent, rely upon the law of the country in which he has his habitual residence at the time the court is seised if it appears from the circumstances that it would not be reasonable to determine the effect of his conduct in accordance with the law specified in paragraph 1.’ 150 This sentence is optional and can be inserted into the clause if the parties intend to clarify that said clause does not cover maintenance obligations.

Choice-of-Court and Choice-of-Law Clauses  749

Model Clause No 2(b) Choice of court according to Article  7(1), absent a choice of law according to Article 22 of the Regulation on the Property Consequences of Registered Partnerships [Full name and identification details of party A] and [Full name and identification details of party B] irrevocably agree that the court, whose law is applicable pursuant to Article 26 of Council Regulation (EU) 2016/1104 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of the property consequences of registered partnerships (‘Regulation (EU) 2016/1103’), is to have exclusive jurisdiction to rule on matters of their property consequences of a registered partnership in accordance with Article 7 of Regulation (EU) 2016/1103 and no other court is to have jurisdiction. Signed in [______________] on [______________] Signature of the parties: [______________] Note regarding Model Clause No 2b): Absent a choice-of-law agreement according to Article 22 of the Regulation on the Property Consequences of Registered Partnership, on the basis of the current Model Clause the parties before the dispute will not be able to foresee with certainty what court will actually exercise jurisdiction. This model clause may benefit the parties who wish that the court with jurisdiction over the property regime will apply its own substantive law to the merits of the case, notwithstanding the impossibility to foresee such competent court and applicable law. The parties must be aware of the consequences of such agreement. Note regarding all Model Clauses above: The Model Clauses under the Matrimonial Property Regime Regulation and Regulation on the Property Consequences of Registered Partnership may be used only in the Member States which participate in the enhanced cooperation in the area of matters concerning property regimes. In other States, their relevance will be assessed through their domestic PIL rules. On the formal requirements, see sections II.E. and II.F.

750  Francesca Clara Villata and Lenka Válková

E.  Divorce or Legal Separation and Property Regime The concentration of the proceedings relating to divorce or legal separation and property regime and the application of the law of the forum is possible through a choice-of-court agreement combined with a choice-of-law agreement. The concentration of proceedings relating to divorce or legal separation according to Article  3 of the Brussels  IIa Regulation (when the spouses file a joint application for divorce; or when a court is seised unilaterally by one of the spouses) with proceedings relating to the property regime and the application of the law of the forum may be reached through the application of the following rules: –– Article 5(1) of the Matrimonial Property Regime Regulation, which automatically connects proceedings for divorce or legal separation with the property regime or where a court is seised in accordance with the fifth and sixth indent of Article 3(1) (a) or pursuant to Articles 5 or 7 of the Brussels  IIa Regulation jurisdiction shall be subject to the spouses’ agreement according to Article 5(2) of the Matrimonial Property Regime Regulation; –– Article 5(1)(d) of the Rome III Regulation, which enables the parties to designate the lex fori as the law applicable to the merits of the case in proceeding relating to divorce or legal separation. However, Article 22 of the Matrimonial Property Regime Regulation, as the choice-oflaw rule in property regime, does not expressly provide for the possibility to make the law applicable to the property regime coincide with the law applicable to divorce or legal separation or maintenance obligations, nor for the possibility to make the law applicable to property regime coincide (ius) with the forum if the jurisdiction is based on Article 5 of the Matrimonial Property Regime Regulation. Nevertheless, an indirect implicit coordination (‘coincidence between ius and forum’) can be achieved when the connecting factor on the basis of which the law applicable to property regime is designated by the parties according to Article 22 of the Matrimonial Property Regime Regulation de facto corresponds to the jurisdictional ground on the basis of which the court is seised with the divorce or legal separation proceedings.

Example: Two German nationals, Emma and Ben live in Croatia. They are going to marry on 31 May 2021. They are interested in ensuring that the court competent for divorce will also have jurisdiction over the property regime and that said court will apply its own substantive law to the merits of the case. Emma and Ben wish to conclude a choice-of-law agreement designating Croatian law as the law applicable to their property regime according to Article 22(1)(a) of the Matrimonial Property Regime Regulation, since they informally agree that in case of divorce Croatian courts will have jurisdiction over their

Choice-of-Court and Choice-of-Law Clauses  751

application for divorce according to Article 3(1)(a) of the Brussels IIa Regulation (this agreement inter partes does not have any binding character as we will see below). They also conclude a choice-of-court agreement according to Article 5(2) of the Matrimonial Property Regime Regulation regarding their property regime in order to guarantee connection of jurisdictions for divorce and property regime also. Finally, they conclude a choice-of-law agreement according to Article 5(1)(d) of the Rome III Regulation regarding the law applicable to their divorce (lex fori) designating the law of whatever competent forum is seised. We can imagine the following scenario: The relationship between Emma and Ben ends in 2022 and Ben moves to Malta, which, after some time, can be considered as his habitual residence. First, Emma and/or Ben may seise a court to divorce: –– in Croatia, according to Article  3(1)(a) fourth indent in the event of a joint application (based on the habitual residence of Emma), according to Article 3(1)(a) second indent (based on the last habitual spouses’ residence, insofar as Emma still resides there), according to 3(1)(a) third indent if Ben autonomously files an application for divorce (based on the habitual residence of Emma – as a respondent); –– in Malta, according to Article  3(1)(a) fourth indent in the event of a joint application (based on the habitual residence of Ben), according to Article 3(1)(a) third indent if Emma autonomously files an application for divorce (based on the habitual residence of Ben – as a respondent), according to Article 3(1)(a) fifth indent if Ben autonomously files an application for divorce (based on the habitual residence of Ben as applicant, since he resided there for at least a year immediately before the application was made); –– in Germany, according to Article  3(1)(b) of the Brussels  IIa Regulation (based on the nationality of both Emma and Ben) as previously agreed. The same court will also have jurisdiction as to the property regime in accordance with the choice-of-court agreement concluded pursuant to Article 5(2) of the Matrimonial Property Regime Regulation. Since Emma and Ben have designated the law of the forum as the law ­applicable to their divorce (ie, Croatian, Maltese or German courts) according to Article  5(1)(d) of the Rome III Regulation, the seised court will apply the lex fori to the merits of the case. Nevertheless, the application of the law of the forum to the property regime will be possible only if the Croatian court will be seised as to divorce according to Article 3(1)(a) of the Brussels IIa Regulation, as the parties informally agreed before their marriage.

752  Francesca Clara Villata and Lenka Válková

Model Clause: I. Jurisdiction [Full name and identification details of party A] and [Full name and ­identification details of party B] irrevocably agree that the court exercising jurisdiction by virtue of Article  3 of the of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (‘Regulation (EC) No 2201/2003’)151 on an application for divorce, legal separation or marriage annulment, is to have exclusive jurisdiction to settle any disputes on matters of their matrimonial property regime in accordance with Article 5 including the cases provided in Article 5 ­paragraph 2 of Council Regulation (EU) 2016/1103 of 24 June 2016 ­implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes and no other court is to have jurisdiction. 152 II. Governing law The parties hereof irrevocably agree that: –– divorce and/or legal separation between them is governed by the law of the court exercising jurisdiction by virtue of Regulation (EC) No 2201/2003, in accordance with Article 5 paragraph 1 litt. d) of Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation; –– matrimonial property regime between them is governed by and determined only in accordance with [Specification of designated law] pursuant to Article 22 paragraph 1 litt. [___] of Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes.153 Date signed: [______________] Date signed: [______________] Signature of the party: [______________] Signature of the party: [______________]

151 On the legal proceedings instituted on or after 1 August 2022, see n 9. 152 The exclusivity of the jurisdiction conferred by the agreement is determined in Art 7(1) of the Matrimonial Property Regime Regulation. It is doubtful whether the parties may agree on non-exclusive jurisdiction clause. 153 However, Art 6(2) of the Rome III Regulation and Art 24(2) of the Matrimonial Property Regime Regulation provides: ‘Nevertheless, a spouse, in order to establish that he did not consent, may rely upon the law of the country in which he has his habitual residence at the time the court is seised if it appears from the circumstances that it would not be reasonable to determine the effect of his conduct in accordance with the law specified in paragraph 1.’

Choice-of-Court and Choice-of-Law Clauses  753

Note: Due to the lack of a rule on choice-of-court agreements in divorce or legal separation or marriage annulment matters under the Brussels IIa Regulation and Brussels IIter Regulation, on the basis of current Model Clause parties before the dispute will not be able to foresee with certainty what court will actually exercise jurisdiction over their matrimonial regime and what law will be in fact applicable to their divorce or legal separation.154 The Model Clause above may benefit the parties who wish to concentrate the proceedings relating to divorce or legal separation and property regime in front of one court that will apply its own law, with no possibility to foresee the competent court and applicable law. However, such agreement may even encourage abusive litigation tactics (rush to court, please see footnote 2), as either spouse may rush to file the claim before the court that will apply the most beneficial substantive rules concerning divorce or legal separation and property regime. The parties must be aware of the consequences of such agreement. However, as already stated above in this section, the court exercising jurisdiction on divorce or legal separation and property regime matters can apply the lex fori to the property regime only when the parties designate the law according to Article 22 of the Matrimonial Property Regime Regulation and the connecting factor will correspond to the jurisdictional ground on the basis of which the court will exercise jurisdiction as to divorce or legal separation. The Model Clauses under the Rome III Regulation and Matrimonial Property Regime Regulation may be used only in the Member States which participate in the enhanced cooperation in the area of matters concerning divorce or legal separation and in the area of matters concerning matrimonial property regimes. In other states, their relevance will be assessed through their domestic PIL rules. On the formal requirements, see sections II.B. and II.E.

F.  Divorce or Legal Separation, Maintenance and Property Regime The concentration of proceedings relating to divorce, legal separation, maintenance obligations and property regime and the application of the law of the forum to all three 154 This is the result of the plurality of jurisdictional grounds for divorce laid down in Art 3 of the Brussels IIa Regulation and of the fact that property regime ‘follows’ divorce.

754  Francesca Clara Villata and Lenka Válková subject-matters is possible by means of a choice-of-court agreement combined with a choice-of-law agreement. The concentration of proceedings relating to divorce or legal separation according to Article 3 of the Brussels IIa Regulation (when the spouses file a joint application for divorce or legal separation; or when a court is seised unilaterally only by one of the spouses) with the proceedings relating to maintenance obligations and property regime and the application of the law of the forum may be reached by applying the following rules: –– Article  4(1)(c)(i) of the Maintenance Regulation, that in maintenance matters enables the spouses to agree on a court which has jurisdiction to settle their dispute in matrimonial matters; –– Article  5 of the Matrimonial Property Regime Regulation, which automatically connects proceedings for divorce or legal separation with proceedings on the property regime or where a court is seised in accordance with the fifth and sixth indent of Article 3(1)(a) or pursuant to Articles 5 or 7 of the Brussels IIa Regulation, jurisdiction shall be subject to the spouses’ agreement according to Article 5(2) of the Matrimonial Property Regime Regulation; –– Article 5(1)(d) of the Rome III Regulation, which permits parties to designate the lex fori in proceedings relating to divorce or legal separation: –– Article 8(1)(d) of the Hague Maintenance Protocol, that enables the maintenance creditor and debtor to designate at any time the law designated by the parties as applicable, or the law in fact applied, to their divorce or legal separation. However, Article 22 of the Matrimonial Property Regime Regulation, as the choice-oflaw rule in property regime matters, does not expressly provide for the possibility to have the law applicable to the property regime to coincide with the law applicable to divorce or legal separation or maintenance obligations, or for the possibility to have the law applicable to property regime to coincide (ius) with the forum if the jurisdiction is based on Article 5 of the Matrimonial Property Regime Regulation. Nevertheless, an indirect implicit coordination (‘coincidence between ius and forum’) can be achieved when the connecting factor on the basis of which the law applicable to property regime is designated by the parties according to Article 22 of the Matrimonial Property Regime Regulation de facto corresponds to the jurisdictional ground on the basis of which the court is seised with divorce or legal separation proceedings.

Example: Two Austrian nationals, Lea and Felix lived in Spain. They are going to marry on 1 May 2021. They are interested in ensuring that the court competent for divorce also has jurisdiction over maintenance obligations and property regime and that said court would apply its own substantive law to the merits of the case. Lea and Felix wish to conclude a choice-of-law agreement designating Spanish law as the law applicable to their property regime according to Article 22(1)(a)

Choice-of-Court and Choice-of-Law Clauses  755

of the Matrimonial Property Regime Regulation, since they informally agree that in case of divorce they are interested in ensuring that Spanish courts will have jurisdiction over divorce according to Article  3(1)(a) of the Brussels  IIa Regulation (this agreement inter partes does not have any binding character as we will see below). They also conclude a choice-of-court agreement: (i) according to Article  4(1)(c)(i) of the Maintenance Regulation as to their reciprocal maintenance obligations designating a court which will have jurisdiction to settle their dispute in matrimonial matters; and (ii) according to Article 5(2) of the Matrimonial Property Regime Regulation regarding and property regime in order to guarantee connection of jurisdictions for divorce and property regime. Simultaneously, they conclude a choice-of-law agreement according to Article 5(1)(d) of the Rome III Regulation (lex fori) and Article 8(1)(d) of the 2007 Hague Maintenance Protocol (law designated by the parties as applicable, or the law in fact applied, to their divorce or legal separation). We can imagine the following scenario: The relationship between Lea and Felix ends in 2022 and Felix moves to France, where, after some time, France can be considered to be his habitual residence. First, Lea and/or Felix may seise a court: –– in Spain, according to Article  3(1)(a) fourth indent of the Brussels  IIa Regulation in the event of a joint application (based on the habitual residence of Lea), according to Article 3(1)(a) second indent of the Brussels IIa Regulation (based on the last habitual spouses’ residence, insofar as Lea still resides there), according to Article  3(1)(a) third indent of the Brussels  IIa Regulation if Felix autonomously files an application for divorce (based on the habitual residence of Lea – as a respondent); –– in France, according to Article  3(1)(a) fourth indent of the Brussels  IIa Regulation in the event of a joint application (based on the habitual residence of Felix), according to Article 3(1)(a) third indent of the Brussels IIa Regulation if Lea autonomously files an application for divorce (based on the habitual residence of Felix – as a respondent), according to Article 3(1)(a) fifth indent of the Brussels IIa Regulation if Felix autonomously files an application for divorce (based on the habitual residence of the Felix as applicant, since he resided there for at least a year immediately before the application was made); –– in Austria, according to Article 3(1)(b) of the Brussels IIa Regulation (based on the nationality of Lea and Felix) as previously agreed. The spouses must seise the same court as to the reciprocal maintenance obligations in accordance with the choice-of-court agreement concluded pursuant to Article 4(1)(c)(i) of the Maintenance Regulation.

756  Francesca Clara Villata and Lenka Válková

The same court will have jurisdiction as to their property regime in accordance with the choice-of-court agreement concluded pursuant to Article 5(2) of the Matrimonial Property Regime Regulation. Since Lea and Felix designated the law of the forum as the law applicable to their divorce (ie, Spanish, French or Austrian courts) according to Article  5(1)(d) of the Rome III Regulation and according to Article  8(1)(d) of the Hague Maintenance Protocol, the seised court will apply lex fori to the merits of the case. However, the application of the law of the forum as to the property regime will be possible only if the Spanish court is seised as to divorce according to Article 3(1)(a) of the Brussels IIa Regulation. Model Clause: I. Jurisdiction [Full name and identification details of party A] and [Full name and identification details of party B] irrevocably agree that the court exercising jurisdiction by virtue of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (‘Regulation (EC) No 2201/2003’)155 on an application for divorce, legal separation or marriage annulment, is to have exclusive jurisdiction to settle any disputes: –– on matters relating to maintenance obligations which have arisen or may arise between them in accordance with Article 4 paragraph 1 litt. c) (ii) of Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations;156 –– on matters of their matrimonial property regime in accordance with Article 5 including the cases provided in Article 5 paragraph 2 of Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes. 157 No other court is to have jurisdiction.

155 On the legal proceedings instituted on or after 1 August 2022, see n 9. 156 The exclusivity of the jurisdiction conferred by the agreement is determined by Art 4(1) last indent, however the parties may agree otherwise, ie on a non-exclusive jurisdiction clause in maintenance matters. On non-exclusive jurisdiction clause see section 1.3. 157 The exclusivity of the jurisdiction conferred by the agreement is established in Art 7(1) of the Matrimonial Property Regime Regulation. It is doubtful whether the parties may agree on non-exclusive jurisdiction clause.

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II. Governing law The parties hereof irrevocably agree that: –– in accordance with Article  5 paragraph 1 litt. d) of Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation, [divorce and/or legal separation] between them is governed by the law of the court exercising jurisdiction by virtue of Regulation (EC) No 2201/2003 and no other court is to have jurisdiction; –– maintenance obligations between them are governed by the law designated by the parties in sub-clause a) as applicable to their divorce or legal separation in accordance with Article 8 paragraph 1 litt. d) of the Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations; –– the matrimonial property regime between them is governed by and determined only in accordance with [Specification of designated law] pursuant to Article 22 paragraph 1 litt. [___] of Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes. The same law will also govern the existence and validity of these choice-of-law clauses or of any term thereof.158 Date signed: [______________] Date signed: [______________] Signature of the party: [______________] Signature of the party: [______________] Note: Due to lack of rule on choice-of-court agreements relating to divorce or legal separation under the Brussels IIa Regulation, on the basis of current Model Clause the parties before the dispute will not be able to foresee what court will actually exercise jurisdiction in maintenance matters and in matters relating to matrimonial regime, nor what law will be in fact applicable to divorce or legal separation and maintenance obligations.159

158 However, Art 6(2) of the Rome III Regulation and Art 24(2) of the Matrimonial Property Regime ­Regulation provides: ‘Nevertheless, a spouse, in order to establish that he did not consent, may rely upon the law of the country in which he has his habitual residence at the time the court is seised if it appears from the circumstances that it would not be reasonable to determine the effect of his conduct in accordance with the law specified in paragraph 1.’ Also Art 8(4) of 2007 Hague Maintenance Protocol provides: ‘Notwithstanding the law designated by the parties in accordance with paragraph 1, the question of whether the creditor can renounce his or her right to maintenance shall be determined by the law of the state of the habitual residence of the creditor at the time of the designation.’ 159 This is the result of the plurality of jurisdictional grounds for divorce laid down in Art 3 of the Brussels IIa Regulation and of the fact that maintenance obligations and property regime ‘follow’ divorce.

758  Francesca Clara Villata and Lenka Válková

This model clause may benefit the parties who wish to concentrate the proceedings relating to divorce or legal separation, maintenance obligations and property regime in front of one court that will apply its own law, with no possibility to foresee such competent court and applicable law. However, such agreement may even encourage abusive litigation tactics (rush to court, please see footnote 2), as either spouse may rush to file the claim before the court that will apply the most beneficial substantive rules concerning divorce or legal separation, maintenance obligations and property regime. The parties must be aware of the consequences of such agreement. However, as already stated above in this section, the court exercising jurisdiction over divorce or legal separation, maintenance obligations and property regime can apply the lex fori to the property regime only when the connecting factor on which basis the parties designated the applicable law according to Article 22 of the Matrimonial Property Regime Regulation corresponds to the jurisdictional ground on which basis the court will be seised as to divorce or legal separation. The Model Clauses under the Rome III Regulation and Matrimonial Property Regime Regulation may be used only in the Member States which participate in the enhanced cooperation in the area of matters concerning divorce or legal separation and in the area of matters concerning matrimonial property regimes. In other states, their relevance will be assessed through their domestic PIL rules. On the formal requirements, see sections II.B., II.C., II.D. and II.E.

G. Succession Succession Regulation allows parallelism between ius and forum by means of a choice-of-law declaration of the de cuius, combined with a choice-of court agreement among the parties concerned in the relevant succession. A person may choose as the law to govern his or her succession as a whole the law of the state whose nationality he or she possesses at the time of making the choice or at the time of death (in case of multiple nationalities, a person may choose the law of any of the states whose nationality he possesses at the time of making the choice or at the time of death).160 Article 5 of the Succession Regulation provides that, when the law chosen by the deceased to govern his or her succession pursuant to Article 22 is the law of a Member State (based on the nationality of the deceased), the parties concerned may agree that a court of 160 On the model clauses concerning disposition of property upon death or a on the agreement as to succession, see section II.G.ii.

Choice-of-Court and Choice-of-Law Clauses  759 that Member State is to have exclusive jurisdiction to rule on any succession matter.161 Absent any choice of law with regard to succession matters, it would also be possible to reach the coincidence between ius and forum according to Articles 4 and 21 of the Succession Regulation – whereby the connecting factor is the habitual residence of deceased.162 Example: Xavier, a deceased national of Malta, was habitually resident in Germany at the time of his death. In 2016, he chose the law of Malta to govern his succession as a whole in accordance with Article 22(1) of the Succession Regulation. His heirs may now designate only the courts of Malta according to Article 5 of the Succession Regulation, otherwise German courts would have jurisdiction according to Article 4 of the Succession Regulation, since Xavier was habitually resident in Germany at the time of death. Model Clause No 1 must be completed with Model Clause No 2: Model Clause No 1 Declaration of the deceased as to the law applicable to his or her succession I, [Full name and identification details], the undersigned, hereby declare that I choose as the law to govern my succession as a whole the law of [Specification

161 While the choice of law in accordance with Article 22 of the Succession Regulation may result in the designation of the law of a third state, the choice-of-court provision finds no application if the de cuius chose the law of a third state. It means that where the deceased is a national of the third state, the choice-of-court agreement is not governed by the Succession Regulation. On the choice of applicable law and choice of court under the Succession Regulation see also Request for a preliminary ruling lodged on 4 February 2019 in Case E. E., C-80/19, where the Lietuvos Aukščiausiasis Teismas (Lithuania) asked the following questions: 1. ‘Is a situation such as that in the case under examination – in which a Lithuanian national whose habitual place of residence on the day of her death was possibly in another Member State, but who in any event had never severed her links with her homeland, and who, inter alia, had drawn up, prior to her death, a will in Lithuania and left all of her assets to her heir, a Lithuanian national, and at the time of the opening of the succession it was established that the entire estate comprised immovable property located solely in Lithuania, and a national of that other Member State surviving his spouse expressed in clear terms his intention to waive all claims to the estate of the deceased, did not take part in the court proceedings brought in Lithuania, and consented to the jurisdiction of the Lithuanian courts and the application of Lithuanian law – to be regarded as a succession with cross-border implications within the meaning of Regulation No 650/2012 and to which that regulation must be applied?’ … 6. ‘Should the provisions of Articles 4, 5, 7 and 22 of Regulation No 650/2012 (together or separately, but without limitation to those articles) be construed and applied in such a way that, in the present case, in accordance with the facts as set out in the first question, it must be concluded that the parties concerned agreed that the courts in Lithuania should have jurisdiction and that Lithuanian law should be applied?’ 162 Therefore, this chapter does not contain examples and model clauses where the connecting factor is habitual residence.

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of designated law] whose nationality I possess in accordance with Article 22 of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession. Date signed: [______________] Signature: [______________] Model Clause No 2 Agreement between the concerned parties on choice of court [Full name and identification details of party A] and [Full name and identification details of party B] irrevocably agree that [Identification of a specific Member State court/Identification of the courts of a Member State] is/are to have exclusive jurisdiction to rule on any succession matter in accordance with Article 5 paragraph 1 of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession (‘Regulation (EU) No 650/2012’) and no other court(s) is/are to have jurisdiction163 since on [date] the deceased, [Full name and identification details of deceased] has chosen as the law to govern his/her succession as a whole the law of [Specification of law designated by the deceased] according to Article 22 of Regulation (EU) No 650/2012 whose nationality he/she possessed. On the formal requirements see section II.G.

H.  Succession and Property Regime The connection of the proceedings in succession and property regime matters is automatic in accordance with Article  4 of both the Matrimonial Property Regime Regulation and Regulation on Property Consequences of Registered Partnership. As a consequence, no choice-of-court agreement is required.

163 The exclusivity of the jurisdiction conferred by the agreement is established in Art 5(1) of the Succession Regulation.

Choice-of-Court and Choice-of-Law Clauses  761 However, the unification of applicable law through a choice-of-law agreement is possible only if the same connecting factors apply in relation to both subject matters. According to Article 22 of the Succession Regulation a person may choose, as the law to govern his or her succession as a whole, the law of the state whose nationality he or she possesses at the time of making the choice or at the time of death (in case of multiple nationalities, a person may choose the law of any of the states whose nationality he or she possesses at the time of making the choice or at the time of death).164 Article 22(1)(b) of both the Matrimonial Property Regime Regulation and Regulation on the Property Consequences of Registered Partnerships provide for possibility to designate the law of the state of nationality of either partner or future partner at the time the agreement is concluded. It is also possible to unify the law applicable to succession and property regime matters through Article  22(1)(a) of both the Matrimonial Property Regime Regulation and the Regulation on the Property Consequences of Registered Partnerships and according to Article 21 of the Succession Regulation, where the connecting factor is habitual residence. However, if later on the spouse or partner changes his or her habitual residence, the unification of applicable law in both subject matters will not be possible anymore.165

i.  Spouses/Partners of Same Nationality Example No 1: Two future spouses, Lukas and Miriam, nationals of Germany, are habitually resident in Italy and they are getting married in July 2021. One month before their marriage, they decide to designate the law applicable to their respective succession as a whole and to their property regime. Lukas and Miriam can designate German law as the law governing their respective succession as a whole according to Article  22(1) of the Succession Regulation (based on the nationality of both Lukas and Miriam). The future spouses may also designate German law as the law governing their property regime according to Article 22(1)(b) of Matrimonial Property Regime Regulation (based on the nationality of both Lukas and Miriam). If Lukas dies before Miriam, Miriam and Lukas’s son Michael (parties concerned concerning Lukas’ succession), will have an option to designate German courts according to Article 5 of the Succession Regulation in order to achieve the coincidence between ius and forum.

164 On the model clauses concerning disposition of property upon death or a on the agreement as to succession and property regime, see section III.B.v. 165 As a consequence, this chapter does not contain examples and model clauses where the relevant connecting factor is the habitual residence.

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Model Clause No 1 (a or b) must be completed with Model Clause No 2 (a or b) and Model Clause No 3: Model Clause No 1(a) Declaration of spouse A/partner A as to law the applicable to his or her succession as a whole according to Article  22 of the Succession Regulation I, [Full name and identification details], the undersigned, hereby declare that I choose as the law to govern my succession as a whole the law of [Specification of designated law] whose nationality I possess in accordance with Article 22 of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession. Date signed: [______________] Signature: [______________] and Declaration of spouse B/partner B as to law the applicable to his or her succession as a whole according to Article  22 of the Succession Regulation I, [Full name and identification details], the undersigned, hereby declare that I choose as the law to govern my succession as a whole the law of [Specification of designated law] whose nationality I possess in accordance with Article 22 of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession. Date signed: [______________] Signature: [______________] or Model Clause No 1(b) Declarations of spouse A/partner A and spouse B/partner B as to law the applicable to their respective succession as a whole according to Article 22 of the Succession Regulation I, [Full name and identification details of spouse A/partner A], the undersigned, hereby autonomously declare to choose as the law to govern my succession as a whole,

Choice-of-Court and Choice-of-Law Clauses  763

and I, [Full name and identification details of spouse B/partner B], the undersigned, hereby autonomously declare to choose as the law to govern my succession as a whole, the law of [Specification of the designated law], whose nationality we possess, in accordance with Article  22 of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession. Date signed: [______________] Date signed: [______________] Signature: [______________] Signature: [______________] Note regarding Model Clause No 1(b): Article  22(3) of the Succession Regulation states that the choice shall be made expressly in a declaration in the form of a disposition of property upon death or shall be demonstrated by the terms of such a disposition. The choice of the law applicable to the succession of each spouse/partner can be made through autonomous declarations contained in separate documents as demonstrated on Model Clause No 1(a) above. However, in case of spouses/partner of the same nationality, the possibility of a joint (but still autonomous) choice of the law applicable to their respective succession as a whole by both spouses in a single document is not precluded if that form complies with the law listed in Article 27 of the Succession Regulation (on the formal requirements, see section II.G.ii.a. above). and Model Clause No 2(a) Agreement of spouse A and spouse B (of same nationality) as to the law applicable to their property regime according to the Matrimonial Property Regime Regulation [Full name and identification details of party A] and [Full name and identification details of party B] irrevocably agree that matrimonial property regime between them is governed by and determined only in accordance with [Specification of designated law] pursuant to Article 22 paragraph 1 litt. b) of Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes.

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The same law will also govern the existence and validity of this choice-of-law clause or of any term thereof.166 The parties hereby agree that this clause does not apply to maintenance obligations between them.167 Date signed: [______________] Date signed: [______________] Signature of the party: [______________] Signature of the party: [______________] or Model Clause No 2(b) Agreement of partner A and partner B (of same nationality) as to the law applicable to their property regime according to the Regulation on Property Consequences of Registered Partnerships [Full name and identification details of party A] and [Full name and identification details of party B] irrevocably agree that the property consequences of a registered partnership between them are governed by and determined only in accordance with [Specification of designated law] pursuant to Article  22 paragraph 1 litt. b) of the of Council Regulation (EU) 2016/1104 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of the property consequences of registered partnerships. The same law will also govern the existence and validity of this choice-of-law clause or of any term thereof.168 The parties hereby agree that this clause does not apply to maintenance obligations between them.169 Date signed: [______________] Date signed: [______________] Signature of the party: [______________] Signature of the party: [______________]

166 However, Art 24(2) of the Matrimonial Property Regime Regulation provides: ‘Nevertheless, a spouse, in order to establish that he did not consent, may rely upon the law of the country in which he has his habitual residence at the time the court is seised if it appears from the circumstances that it would not be reasonable to determine the effect of his conduct in accordance with the law specified in paragraph 1.’ 167 This sentence is optional and can be inserted into the clause if the parties intend to clarify that said clause does not cover maintenance obligations. 168 However, Art 24(2) of the Regulation on the Property Consequences of Registered Partnerships provides: ‘Nevertheless, a partner may, in order to establish that he did not consent, rely upon the law of the country in which he has his habitual residence at the time the court is seised if it appears from the circumstances that it would not be reasonable to determine the effect of his conduct in accordance with the law specified in paragraph 1.’ 169 This sentence is optional and can be inserted into the clause if the parties intend to clarify that said clause does not cover maintenance obligations.

Choice-of-Court and Choice-of-Law Clauses  765

and Model Clause No 3 Agreement between the concerned parties on choice of court in succession matters [Full name and identification details of party A] and [Full name and identification details of party B] irrevocably agree that [Identification of a specific Member State court/Identification of the courts of a Member State] is/ are to have exclusive jurisdiction to rule on any succession matter in accordance with Article 5 paragraph 1 of the of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession (‘Regulation (EU) No 650/2012’) and no other court(s) is/are to have jurisdiction170 since on [date] the deceased, [Full name and identification details of the deceased] has chosen as the law to govern his/her succession as a whole the law of [Specification of law designated by the deceased] according to Article 22 of Regulation (EU) No 650/2012 whose nationality he/she possessed. Date signed: [______________] Date signed: [______________] Signature of the party: [______________] Signature of the party: [______________] Note: The law applicable to the property regime must coincide with the law applicable to succession by virtue of Article 22(1)(b) of the Matrimonial Property Regime Regulation or Regulation on the Property Consequences of Registered Partnerships and Article  22 of the Succession Regulation, which is based on nationality. Otherwise, the application of a single law will not be possible. In case of death of one of the spouses/partners, the coincidence of the law applicable to the succession with the law applicable to their property regime is ensured only in case of the spouses/partners with same nationalities. This Model Clauses under the Matrimonial Property Regime Regulation or Regulation on the Property Consequences of Registered Partnerships may be used only in the Member States which participate in the enhanced cooperation in the area of matters concerning property regime. In other states, their relevance will be assessed through their domestic PIL rules. On the formal requirements, see sections II.E. or II.F. and II.G.ii.a.

170 Although the exclusivity of the jurisdiction conferred by the agreement may be deduced from Art 5(1) of the Succession Regulation, it may be recommended to specify it expressly in the clause, unless the concerned parties agree otherwise.

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ii.  Spouses/Partners of Different Nationality The unification of the law applicable to succession and the property regime might often be only partial. In case of spouses/partners of different nationalities, although the parties may designate the law of nationality of either spouse/partner as the law applicable to their property regime according to Article 22(1)(b) of either the Matrimonial Property Regime Regulation or Regulation on the Property Consequences of Registered Partnerships, Article  22 of the Succession Regulation enables each spouse/partner to designate as the law applicable to his or her succession only the law of his or her proper nationality. As a consequence, if said spouses/partners choose as the law applicable to their property regime the law of nationality of spouse A and spouse/partner B dies as the first, the law applicable to the latter’s succession differs from the law applicable to the property regime. In case that the spouses/partners would prefer that the succession and property regime will be the same in any case, the model clause (and the example) below can be considered. However, it must be kept in mind that their agreement would be ineffective, should an issue concerning the property regime arise before the death of either spouse/partner.

Example No 2: Two future spouses, Lisa, a Dutch national, and Max, a Belgian national, are habitually resident in Luxembourg and they are going to marry in August 2021. They wish to designate the same law applicable to their respective succession as a whole and to their property regime. Lisa can designate Dutch law as the law governing her succession as a whole, according to Article 22(1) of the Succession Regulation (based on the nationality of Lisa) and Max can designate Belgian law as the law governing his succession as a whole according to Article 22(1) of the Succession Regulation (based on the nationality of Max). The future spouses can also designate Dutch law or Belgian law as the law governing their property regime according to Article  22(1)(b) of Matrimonial Property Regime Regulation (based on the nationality of either Lisa or Max). By this choice, the coincidence between the law applicable to their respective succession as a whole and to their property regime would be only partial, but Lisa and Max wish that the law governing their succession as a whole and their property regime will be the same in any case. As a consequence, they wish to agree that their future matrimonial property regime will be governed pursuant to Article  22(1)(b) of Matrimonial Property Regime Regulation in accordance with Dutch law whose nationality Lisa possesses, if the day of Lisa’s death precedes the day of Max’s death, or in accordance with Belgian law whose nationality Max possesses, if the day of Max’s death precedes the day of Lisa’s death.

Choice-of-Court and Choice-of-Law Clauses  767

After Max’s (or Lisa’s) death, his (or her) daughter Dagmar and Lisa (or Max), who are involved in a dispute over Max’s (or Lisa’s) succession may designate Belgian (or Dutch) courts according to Article 5 of the Succession Regulation in order to achieve the coincidence between ius and forum. Model Clause No 1 must be completed with Model Clause No 2 (a or b) and Model Clause No 3: Model Clause No 1 Declaration of spouse A/partner A as to law the applicable to his or her succession as a whole according to Article  22 of the Succession Regulation I, [Full name and identification details], the undersigned, hereby declare that I choose as the law to govern my succession as a whole the law of [Specification of designated law] whose nationality I possess in accordance with Article 22 of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession. Date signed: [______________] Signature: [______________] and Declaration of spouse B/partner B as to law the applicable to his or her succession as a whole according to Article  22 of the Succession Regulation I, [Full name and identification details], the undersigned, hereby declare that I choose as the law to govern my succession as a whole the law of [Specification of designated law] whose nationality I possess in accordance with Article 22 of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession. Date signed: [______________] Signature: [______________]

768  Francesca Clara Villata and Lenka Válková

and Model Clause No 2(a) Agreement of spouse A and spouse B (of different nationality) as to the law applicable to their property regime according to the Matrimonial Property Regime Regulation [Full name and identification details of spouse A] and [Full name and identification details of spouse B], irrevocably agree that matrimonial property regime between them is governed by and determined pursuant to Article 22 paragraph 1 litt. b) of Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regime: –– in accordance with law of [Specification of designated law] whose nationality [Full name of spouse A] possesses, if the day of death of [Full name of spouse A] precedes the day of death of [Full name of spouse B]; or –– in accordance with law of [Specification of designated law] whose nationality [Full name of spouse B] possesses, if the day of death of [Full name of spouse B] precedes the day of death of [Full name of spouse A]. The same law will also govern the existence and validity of this choice-of-law clause or of any term thereof.171 The parties hereby agree that this clause does not apply to maintenance obligations between them.172 Date signed: [______________] Date signed: [______________] Signature of the party: [______________] Signature of the party: [______________] or Model Clause No 2(b) Agreement of partner A and partner B (of different nationality) as to the law applicable to their property regime according to the Regulation on Property Consequences of Registered Partnerships [Full name and identification details of partner A] and [Full name and identification details of partner B], irrevocably agree that the property consequences

171 However, Art 24(2) of the Matrimonial Property Regime Regulation provides: ‘Nevertheless, a spouse may, in order to establish that he did not consent, rely upon the law of the country in which he has his habitual residence at the time the court is seised if it appears from the circumstances that it would not be reasonable to determine the effect of his conduct in accordance with the law specified in paragraph 1.’ 172 This sentence is optional and can be inserted into the clause if the parties intend to clarify that said clause does not cover maintenance obligations.

Choice-of-Court and Choice-of-Law Clauses  769

of a registered partnership between them are governed by and determined pursuant to Article 22 paragraph 1 litt. b) of the of Council Regulation (EU) 2016/1104 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of the property consequences of registered partnerships: –– in accordance with law of [Specification of designated law] whose nationality [Full name of partner A] possesses, if the day of death of [Full name of partner A] precedes the day of death of [Full name of partner B]; or –– in accordance with law of [Specification of designated law] whose nationality [Full name of partner B] possesses, if the day of death of [Full name of partner B] precedes the day of death of [Full name of partner A]. The same law will also govern the existence and validity of this choice-of-law clause or of any term thereof.173 The parties hereby agree that this clause does not apply to maintenance obligations between them.174 Date signed: [______________] Date signed: [______________] Signature of the party: [______________] Signature of the party: [______________] and Model Clause No 3 Agreement between the concerned parties on choice of court in succession matters [Full name and identification details of party A] and [Full name and identification details of party B] irrevocably agree that [Identification of a specific Member State court/Identification of the courts of a Member State] is/are to have exclusive jurisdiction to rule on any succession matter in accordance with Article 5 paragraph 1 of the of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession (‘Regulation (EU) No 650/2012’) and no

173 However, Art 24(2) of the Regulation on the Property Consequences of Registered Partnerships provides: ‘Nevertheless, a partner may, in order to establish that he did not consent, rely upon the law of the country in which he has his habitual residence at the time the court is seised if it appears from the circumstances that it would not be reasonable to determine the effect of his conduct in accordance with the law specified in paragraph 1.’ 174 This sentence is optional and can be inserted into the clause if the parties intend to clarify that said clause does not cover maintenance obligations.

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other court(s) is/are to have jurisdiction175 since on [date] the deceased, [Full name and identification details of the deceased] chose as the law to govern his/her succession as a whole the law of [Specification of law designated by the deceased] according to Article 22 of Regulation (EU) No 650/2012 whose nationality he/she possessed. Date signed: [______________] Date signed: [______________] Signature of the party: [______________] Signature of the party: [______________] Note regarding Model Clauses: The law applicable to the property regime must coincide with the law applicable to succession by virtue of Article  22(1)(b) of the Matrimonial Property Regime Regulation or Regulation on the Property Consequences of Registered Partnerships and Article  22 of the Succession Regulation, which is based on nationality. Otherwise, the application of a single law not be possible. In case of death of one of the spouses/partners, the coincidence of the law applicable to the succession with the law applicable to their property regime is ensured only in case of the spouses/partners with same nationalities. Therefore, the spouses/partners of different nationalities may agree that their future property regime will be governed, pursuant to Article  22(1)(b) of Matrimonial Property Regime Regulation or Regulation on the Property Consequences of Registered Partnerships, in accordance with law whose nationality spouse/partner A possesses, if the day of spouse/partner A death precedes the day of spouse/ partner B death, but in accordance with law whose nationality spouse/partner B possesses, if the day of spouse/partner B death precedes the day of spouse/ partner A death This Model Clauses under the Matrimonial Property Regime Regulation or Regulation on the Property Consequences of Registered Partnerships may be used only in the Member States which participate in the enhanced cooperation in the area of matters concerning property regime. In other States, their relevance will be assessed through their domestic PIL rules. On the formal requirements, see sections II.E. or II.F. and II.G.ii.a.

175 Although the exclusivity of the jurisdiction conferred by the agreement may be deduced from Art 5(1) of the Succession Regulation, it may be recommended to specify it expressly in the clause, unless the concerned parties agree otherwise.

V.  Summary Table of the Provisions on Choice-of-Court and Choice-of-Law Clauses in Family Matters and Succession Matters Legal Instrument Brussels IIa Regulation – parental responsibility

Connecting factor/ground of jurisdiction –– a court exercising jurisdiction over divorce, legal separation or marriage annulment,

Formal validity

Substantive validity

–– express acceptance or other acceptance in an unequivocal manner

Time factor

–– legal proceedings instituted, to documents formally drawn up or registered as authentic instruments and to agreements concluded between the parties after 1 March 2005

–– concluded and modified at any time, but at the latest at the time the court is seised

–– legal proceedings instituted and to agreements of the kind referred to in Article 5 concluded as from 21 June 2012 (effect also given to a choice-of-law agreement concluded before 21 June 2012, if it complies with Articles 6 and 7).

where: at least one of the spouses has parental responsibility and is in the superior interests of the child;

–– habitual residence of the spouses at the time the agreement is concluded; –– last habitual residence of the spouses, in so far as one of them still resides there at the time the agreement is concluded; –– nationality of either spouse at the time the agreement is concluded; –– lex fori.

–– in writing, dated and signed (by electronic means providing a durable record ie, equivalent to writing); –– additional formal requirements (habitual residence of either party) –– in case of designation of law during the proceeding, it shall be recorded in court in accordance with the law of the forum

–– chosen law

–– non-consent of a spouse may be established according to the law of habitual residence of that spouse at –– the time the court is seised if it would not be reasonable to determine the effect of his conduct

in accordance with law of the forum before the court during the proceeding

(continued)

Choice-of-Court and Choice-of-Law Clauses  771

–– at the time the court is seised

–– a court with which the child has a substantial connection, ie child’s nationality or habitual residence of one of the parent and it is in the best interests of the child Rome III Regulation

Temporal scope of application legal instruments

Connecting factor/ground of jurisdiction

Maintenance Regulation

–– habitual residence of either party;

maintenance obligations between the spouses

–– nationality of either party; –– the court which has jurisdiction to settle their dispute in matrimonial matters;

Formal validity

Substantive validity

Time factor

Temporal scope of application legal instruments

–– in writing, any communication by electronic means which provides a durable record is equivalent to ‘writing’

–– proceedings instituted, to court settlements approved or concluded, and to authentic instruments established after 18 June 2011

–– in writing, any communication by electronic means which provides a durable record is equivalent to ‘writing’

–– proceedings instituted, to court settlements approved or concluded, and to authentic instruments established after 18 June 2011

–– spouses’ last common habitual residence for a period of at least one year The conditions must be met at the time the choice of court agreement is concluded or at the time the court is seised. Maintenance Regulation

–– habitual residence of either party;

maintenance obligations towards the other relatives (eg, a child over the age of 18)

–– nationality of either party; The conditions must be met at the time the choice of court agreement is concluded or at the time the court is seised.

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Legal Instrument

Legal Instrument Hague Maintenance Protocol

Connecting factor/ground of jurisdiction

Formal validity –– in writing or recorded in any medium, the information contained in which is accessible so as to be usable for subsequent reference, and signed by both parties

–– Art. 8 (not towards a person under the age of 18 years who, by reason of an impairment or insufficiency is not in a position to protect his/her interest)

–– in writing or recorded in any medium, the information contained in which is accessible so as to be usable for subsequent reference, and signed by both parties

○○ nationality of either party at the time of the designation;

Time factor

Temporal scope of application legal instruments within the Community, the rules of the Protocol apply provisionally, without, from 18 June 2011, the date of application of Regulation (EC) No 4/2009

–– at any time

○○ habitual residence of either party at the time of designation; ○○ law applicable to property regime; ○○ law applicable to divorce or legal separation (continued)

Choice-of-Court and Choice-of-Law Clauses  773

–– Art. 7 (x Article 4(3), the parents’ maintenance obligations towards child and of any other person towards persons under the age of 21 years are in any event governed by the law of the forum when the claim is brought by the creditor in the state of the debtor’s habitual residence) ie, the law of the forum for the purpose of a particular proceeding

Substantive validity

Matrimonial Property Regime Regulation – choice-of-court

Connecting factor/ground of jurisdiction –– Art. 5 – a MS court exercising jurisdiction over divorce, if the court seised with the divorce proceeding was seised in accordance with the fifth, sixth indent of Article 3(1)(a), Article 5 or 7 of the BIIa; –– Art. 7 – where no MS court of has jurisdiction pursuant to Article 4 or 5 or in cases other than those provided for in those Articles: ○○ place of the conclusion of the marriage; ○○ whose law is applicable pursuant to Article 22 (ie habitual residence of either spouse or nationality of either spouse) or point (a) or (b) of Article 26(1) (ie spouses’ first common habitual residence or spouses’ common nationality)

Formal validity –– in writing and dated and signed, any communication by electronic means which provides a durable record is equivalent to writing

Substantive validity

Time factor

Temporal scope of application legal instruments legal proceedings instituted, to authentic instruments formally drawn up or registered and to court settlements approved or concluded on or after 29 January 2019

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Legal Instrument

Legal Instrument Matrimonial Property Regime Regulation – choice-of-law

–– habitual residence of either spouse at the time the agreement is concluded; –– nationality of either spouse at the time the agreement is concluded.

–– Art. 5 – a MS court exercising jurisdiction over the dissolution or annulment of a registered partnership; –– Art. 7 – where no MS court of has jurisdiction pursuant to Article 4 or 5 or in cases other than those provided for in those Articles:

Formal validity –– in writing and dated and signed, any communication by electronic means which provides a durable record is equivalent to writing –– additional formal requirements (habitual residence of either party) in writing and dated and signed, any communication by electronic means which provides a durable record is equivalent to writing

Substantive validity –– chosen law –– law of habitual residence in case of unreasonable effect of chosen law

Time factor

Temporal scope of application legal instruments Chapter III (applicable law) apply only to spouses who marry or who specify the law applicable to the matrimonial property regime after 29 January 2019

legal proceedings instituted, to authentic instruments formally drawn up or registered and to court settlements approved or concluded on or after 29 January 2019

○○ the MS courts under whose law the registered partnership was created; ○○ whose law is applicable pursuant to Article 22 (habitual residence of either partner, nationality of either partner) or Article 26(1) (continued)

Choice-of-Court and Choice-of-Law Clauses  775

Regulation on the Property Consequences of Registered Partnerships – choice-of-court

Connecting factor/ground of jurisdiction

Regulation on the Property Consequences of Registered Partnerships – choice-of-law

Connecting factor/ground of jurisdiction –– habitual residence of either partner; –– nationality of either partner; –– place of registration

Formal validity –– in writing and dated and signed, any communication by electronic means which provides a durable record is equivalent to writing –– additional formal requirements (habitual residence of either party)

Succession Regulation – choice-of-court

–– nationality of the de cuius (in case of application of same chosen choice-of-law);

–– in writing and dated and signed, any communication by electronic means which provides a durable record is equivalent to writing

Substantive validity –– chosen law –– law of habitual residence in case of unreasonable effect of chosen law

Time factor

Temporal scope of application legal instruments Chapter III (applicable law) apply only to partners who register their partnership or who specify the law applicable to the property consequences of their registered partnership after 29 January 2019.

Succession Regulation shall apply to the succession of persons who die on or after 17 August 2015.

776  Francesca Clara Villata and Lenka Válková

Legal Instrument

Legal Instrument Succession Regulation – choice-of-law

Connecting factor/ground of jurisdiction –– nationality of the de cuius

Formal validity –– expressly in a declaration in the form of a disposition of property upon death or demonstrated by the terms of such a disposition

Substantive validity –– chosen law

Time factor

Temporal scope of application legal instruments –– law chosen prior to 17 August 2015 shall be valid if it meets the ­conditions in Chapter III or in application of the rules of private international law, in the state of the deceased’s habitual residence or nationality

Choice-of-Court and Choice-of-Law Clauses  777

–– if disposition of property upon death 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.

778  Francesca Clara Villata and Lenka Válková

VI.  Relevant Provisions on Choice-of-Court and Choice-of-Law Clauses in Family Matters Brussels IIa Regulation

Article 12 Prorogation of jurisdiction 1. The courts of a Member State exercising jurisdiction by virtue of Article  3 on an application for divorce, legal separation or marriage annulment shall have jurisdiction in any matter relating to parental responsibility connected with that application where: (a) at least one of the spouses has parental responsibility in relation to the child; and (b) the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner by the spouses and by the holders of p ­ arental responsibility, at the time the court is seised, and is in the superior interests of the child. 2. The jurisdiction conferred in paragraph 1 shall cease as soon as: (a) the judgment allowing or refusing the application for divorce, legal separation or marriage annulment has become final; (b) in those cases where proceedings in relation to parental responsibility are still pending on the date referred to in (a), a judgment in these proceedings has become final; (c) the proceedings referred to in (a) and (b) have come to an end for another reason. 3. The courts of a Member State shall also have jurisdiction in relation to parental responsibility in proceedings other than those referred to in paragraph 1 where: (a) the child has a substantial connection with that Member State, in particular by virtue of the fact that one of the holders of parental responsibility is habitually resident in that Member State or that the child is a national of that Member State; and (b) the jurisdiction of the courts 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.

Choice-of-Court and Choice-of-Law Clauses  779

4. Where the child has his or her habitual residence in the territory of a third State which is not a contracting party to the Hague Convention of 19 October 1996 on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children, jurisdiction under this Article shall be deemed to be in the child’section interest, in particular if it is found impossible to hold proceedings in the third State in question. Article 64 1. The provisions of this Regulation shall apply only to legal proceedings instituted, to documents formally drawn up or registered as authentic instruments and to agreements concluded between the parties after its date of application in accordance with Article 72. 2. Judgments given after the date of application of this Regulation in proceedings instituted before that date but after the date of entry into force of Regulation (EC) No 1347/2000 shall be recognised and enforced in accordance with the provisions of Chapter III of this Regulation if jurisdiction was founded on rules which accorded with those provided for either in Chapter II or in Regulation (EC) No 1347/2000 or in a convention concluded between the Member State of origin and the Member State addressed which was in force when the proceedings were instituted. 3. Judgments given before the date of application of this Regulation in proceedings instituted after the entry into force of Regulation (EC) No 1347/2000 shall be recognised and enforced in accordance with the provisions of Chapter III of this Regulation provided they relate to divorce, legal separation or marriage annulment or parental responsibility for the children of both spouses on the occasion of these matrimonial proceedings. 4. Judgments given before the date of application of this Regulation but after the date of entry into force of Regulation (EC) No 1347/2000 in proceedings instituted before the date of entry into force of Regulation (EC) No 1347/2000 shall be recognised and enforced in accordance with the provisions of Chapter III of this Regulation provided they relate to divorce, legal separation or marriage annulment or parental responsibility for the children of both spouses on the occasion of these matrimonial proceedings and that jurisdiction was founded on rules which accorded with those provided for either in Chapter II of this Regulation or in Regulation (EC) No 1347/2000 or in a convention concluded between the Member State of origin and the Member State addressed which was in force when the proceedings were instituted.

780  Francesca Clara Villata and Lenka Válková Article 72 Entry into force This Regulation shall enter into force on 1 August 2004. The Regulation shall apply from 1 March 2005, with the exception of Articles 67, 68, 69 and 70, which shall apply from 1 August 2004. Note: In 2006 the Commission proposed to introduce the provision on choice-of-court in proceedings relating to divorce. The proposal has not been adopted. See Proposal for a Council Regulation amending Regulation (EC) No 2201/2003 as regards jurisdiction and introducing rules concerning applicable law in matrimonial matters of 17 July 2006, COM(2006) 399 final, 2006/0135 (CNS): Article 3 Choice of court by the parties in proceedings relating to divorce and legal separation 1. The spouses may agree that a court or the courts of a Member State are to have jurisdiction in a proceeding between them relating to divorce or legal separation provided they have a substantial connection with that Member State by virtue of the fact that (a) any of the grounds of jurisdiction listed in Article 3 applies, or (b) it is the place of the spouses’ last common habitual residence for a minimum period of three years, or (c) one of the spouses is a national of that Member State or, in the case of the United Kingdom and Ireland, has his or her ‘domicile’ in the territory of one of the latter Member States. 2. An agreement conferring jurisdiction shall be expressed in writing and signed by both spouses at the latest at the time the court is seised.

Brussels IIter Proposal

Recital 16 (new) Under certain conditions and where it is in the best interests of the child, jurisdiction in matters of parental responsibility may also be established in a Member State where proceedings for divorce, legal separation or marriage annulment are pending between the parents, or in another Member State with which the child has a substantial connection and upon which the parties have agreed, even if the child is

Choice-of-Court and Choice-of-Law Clauses  781 not habitually resident in that Member State. Such jurisdiction, which is an exception to the principle of proximity embodied in the jurisdiction of the Member State of habitual residence of the child for which perpetuatio fori does not exist, should cease at the latest as soon as a decision in those proceedings on parental responsibility matters has become final, in order to respect the requirement of proximity for any new proceedings in the future. Article 10 Choice of court for ancillary and autonomous proceedings 1. The courts of a Member State exercising jurisdiction pursuant to Article 3 on an application for divorce, legal separation or marriage annulment shall have jurisdiction in any matter relating to parental responsibility connected with that application where the following conditions are met: (a) at least one of the spouses has parental responsibility in relation to the child; and (b) the jurisdiction has been accepted expressly or otherwise in an unequivocal manner by the spouses and by the holders of parental responsibility, at the latest at the time the court is seised, or, where the law of that Member State so provides, during those proceedings; and (c) the jurisdiction is in the best interests of the child. 2. The jurisdiction conferred in paragraph 1 shall cease as soon as: (a) the decision on the application for divorce, legal separation or marriage annulment has become final; or (b) a decision in proceedings in relation to parental responsibility has become final, in cases where those proceedings are still pending on the date when the decision referred to in point (a), has become final; or (c) the proceedings referred to in points (a) and (b) have come to an end for another reason. 3. The courts of a Member State shall also have jurisdiction in relation to ­parental responsibility where the following conditions are met: (a) the child has a substantial connection with that Member State, in particular by virtue of the fact that one of the holders of parental responsibility is habitually resident in that Member State or that the child is a national of that Member State; and (b) the jurisdiction has been accepted expressly or otherwise in an unequivocal manner by all the parties to the proceedings at the latest at the time the court is seised or, where the law of that Member State so provides, during those proceedings; and (c) the jurisdiction is in the best interests of the child.

782  Francesca Clara Villata and Lenka Válková

4.

The jurisdiction conferred in paragraph 3 shall cease as soon as the proceedings have led to a final decision.176

5. Where all the parties to the proceedings in relation to parental responsibility accept the jurisdiction referred to in paragraph 1 or 3 during those proceedings, the agreement of the parties shall be recorded in court in accordance with the law of the Member State of the court. 6. Where the child has his or her habitual residence in the territory of a third State which is not a contracting Party to the Hague Convention of 19  ­October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children (’the 1996 Hague Convention’), jurisdiction under this Article shall be deemed to be in the child’s interest, in particular if it is found impossible to hold proceedings in the third State in question.

Brussels IIter Regulation

Recital 23 Under specific conditions laid down by this Regulation, it should be possible for jurisdiction in matters of parental responsibility also to be established in a Member State where proceedings for divorce, legal separation or marriage annulment are pending between the parents, or in another Member State with which the child has a substantial connection and which the parties have either agreed upon in advance, at the latest at the time the court is seised, or accepted expressly in the course of those proceedings, even if the child is not habitually resident in that Member State, provided that the exercise of such jurisdiction is in the best interests of the child. According to the case-law of the Court of Justice, anyone other than the parents who, according to national law, has the capacity of a party to the proceedings commenced by the parents, should be considered a party to the proceedings for the purposes of this Regulation and therefore, opposition by that party to the choice of jurisdiction made by the parents of the child in question, after the date on which the court was seised, should preclude the acceptance of prorogation of jurisdiction by all the parties to the proceedings

176 Judgment of CJEU, 1 October 2014, C-436/13, E v B: ‘Jurisdiction in matters of parental responsibility which has been prorogued, under Article 12(3) of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, in favour of a court of a Member State before which proceedings have been brought by mutual agreement by the holders of parental responsibility ceases following a final judgment in those proceedings.’

Choice-of-Court and Choice-of-Law Clauses  783

at that date from being established. Before exercising its jurisdiction based on a choice of court agreement or acceptance the court should examine whether this agreement or acceptance was based on an informed and free choice of the parties concerned and not a result of one party taking advantage of the predicament or weak position of the other party. The acceptance of jurisdiction in the course of the proceedings should be recorded by the court in accordance with national law and procedure. Recital 24 Any agreed or accepted jurisdiction should cease, unless otherwise agreed by the parties, as soon as a decision in those proceedings on matters of parental responsibility is no longer subject to ordinary appeal or the proceedings have come to an end for another reason, in order to respect the requirement of proximity for any new proceedings in the future. Article 10 Choice of court 1. The courts of a Member State shall have jurisdiction in matters of parental responsibility where the following conditions are met: (a) the child has a substantial connection with that Member State, in particular by virtue of the fact that: (i) at least one of the holders of parental responsibility is habitually resident in that Member State; (ii) that Member State is the former habitual residence of the child; or (iii) the child is a national of that Member State; (b) the parties, as well as any other holder of parental responsibility have: (i) agreed freely upon the jurisdiction, at the latest at the time the court is seised; or (ii) expressly accepted the jurisdiction in the course of the proceedings and the court has ensured that all the parties are informed of their right not to accept the jurisdiction; and (c) the exercise of jurisdiction is in the best interests of the child. 2. A choice of court agreement pursuant to point (b) of paragraph 1 shall be in writing, dated and signed by the parties concerned or included in the court record in accordance with national law and procedure. Any communication by electronic means which provides a durable record of the agreement shall be equivalent to ’writing’. Persons who become parties to the proceedings after the court was seised may express their agreement after the court was seised. In the absence of their opposition, their agreement shall be regarded as implicit.

784  Francesca Clara Villata and Lenka Válková

3. Unless otherwise agreed by the parties, the jurisdiction conferred in paragraph 1 shall cease as soon as: (a) the decision given in those proceedings is no longer subject to ordinary appeal; or (b) the proceedings have come to an end for another reason. 4.

The jurisdiction conferred in point (b)(ii) of paragraph 1 shall be exclusive.

Rome III Regulation

Article 5 Choice of applicable law by the parties 1. The spouses may agree to designate the law applicable to divorce and legal separation provided that it is one of the following laws: (a) the law of the State where the spouses are habitually resident at the time the agreement is concluded; or (b) the law of the State where the spouses were last habitually resident, in so far as one of them still resides there at the time the agreement is concluded; or (c) the law of the State of nationality of either spouse at the time the agreement is concluded; or (d) the law of the forum. 2. Without prejudice to paragraph 3, an agreement designating the applicable law may be concluded and modified at any time, but at the latest at the time the court is seised. 3. If the law of the forum so provides, the spouses may also designate the law applicable before the court during the course of the proceeding. In that event, such designation shall be recorded in court in accordance with the law of the forum. Article 6 Consent and material validity 1. The existence and validity of an agreement on choice of law or of any term thereof, shall be determined by the law which would govern it under this Regulation if the agreement or term were valid.

Choice-of-Court and Choice-of-Law Clauses  785

2. Nevertheless, a spouse, in order to establish that he did not consent, may rely upon the law of the country in which he has his habitual residence at the time the court is seised if it appears from the circumstances that it would not be reasonable to determine the effect of his conduct in accordance with the law specified in paragraph 1. Article 7 Formal validity 1. The agreement referred to in Article  5(1) and (2), shall be expressed in writing, dated and signed by both spouses. Any communication by electronic means which provides a durable record of the agreement shall be deemed equivalent to writing. 2. However, if the law of the participating Member State in which the two spouses have their habitual residence at the time the agreement is concluded lays down additional formal requirements for this type of agreement, those requirements shall apply. 3. If the spouses are habitually resident in different participating Member States at the time the agreement is concluded and the laws of those States provide for different formal requirements, the agreement shall be formally valid if it satisfies the requirements of either of those laws. 4. If only one of the spouses is habitually resident in a participating Member State at the time the agreement is concluded and that State lays down additional formal requirements for this type of agreement, those requirements shall apply. Article 18 Transitional provisions 1. This Regulation shall apply only to legal proceedings instituted and to agreements of the kind referred to in Article  5 concluded as from 21 June 2012. However, effect shall also be given to an agreement on the choice of the applicable law concluded before 21 June 2012, provided that it complies with Articles 6 and 7. 2. This Regulation shall be without prejudice to agreements on the choice of applicable law concluded in accordance with the law of a participating Member State whose court is seised before 21 June 2012.

786  Francesca Clara Villata and Lenka Válková Maintenance Regulation

Article 4 Choice of court 1. The parties may agree that the following court or courts of a Member State shall have jurisdiction to settle any disputes in matters relating to a maintenance obligation which have arisen or may arise between them: (a) a court or the courts of a Member State in which one of the parties is habitually resident; (b) a court or the courts of a Member State of which one of the parties has the nationality; (c) in the case of maintenance obligations between spouses or former spouses: (i) the court which has jurisdiction to settle their dispute in matrimonial matters; or (ii) a court or the courts of the Member State which was the Member State of the spouses’ last common habitual residence for a period of at least one year. The conditions referred to in points (a), (b) or (c) have to be met at the time the choice of court agreement is concluded or at the time the court is seised. The jurisdiction conferred by agreement shall be exclusive unless the parties have agreed otherwise. 2. A choice of court agreement shall be in writing. Any communication by electronic means which provides a durable record of the agreement shall be equivalent to ‘writing’. 3. This Article shall not apply to a dispute relating to a maintenance obligation towards a child under the age of 18. 4. If the parties have agreed to attribute exclusive jurisdiction to a court or courts of a State party to the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (1), signed on 30 October 2007 in Lugano (hereinafter referred to as the Lugano Convention), where that State is not a Member State, the said Convention shall apply except in the case of the disputes referred to in paragraph 3. Article 75 Transitional provisions 1. This Regulation shall apply only to proceedings instituted, to court settlements approved or concluded, and to authentic instruments established after its date of application, subject to paragraphs 2 and 3.

Choice-of-Court and Choice-of-Law Clauses  787

2. Sections 2 and 3 of Chapter IV shall apply: (a) to decisions given in the Member States before the date of application of this Regulation for which recognition and the declaration of enforceability are requested after that date; (b) to decisions given after the date of application of this Regulation following proceedings begun before that date, in so far as those decisions fall with the scope of Regulation (EC) No 44/2001 for the purposes of recognition and enforcement. Regulation (EC) No 44/2001 shall continue to apply to procedures for recognition and enforcement under way on the date of application of this Regulation. The first and second subparagraphs shall apply mutatis mutandis to court settlements approved or concluded and to authentic instruments established in the Member States. 3. Chapter VII on cooperation between Central Authorities shall apply to requests and applications received by the Central Authority as from the date of application of this Regulation. Article 76 Entry into force This Regulation shall enter into force on the 20th day following its publication in the Official Journal of the European Union. Articles 2(2), 47(3), 71, 72 and 73 shall apply from 18 September 2010. Except for the provisions referred to in the second paragraph, this Regulation shall apply from 18 June 2011, subject to the 2007 Hague Protocol being applicable in the Community by that date. Failing that, this Regulation shall apply from the date of application of that Protocol in the Community.

Hague Maintenance Protocol

Article 7 Designation of the law applicable for the purpose of a particular proceeding (1) Notwithstanding Articles 3 to 6, the maintenance creditor and debtor for the purpose only of a particular proceeding in a given State may expressly designate the law of that State as applicable to a maintenance obligation.

788  Francesca Clara Villata and Lenka Válková

(2) A designation made before the institution of such proceedings shall be in an agreement, signed by both parties, in writing or recorded in any medium, the information contained in which is accessible so as to be usable for subsequent reference. Article 8 Designation of the applicable law (1) Notwithstanding Articles 3 to 6, the maintenance creditor and debtor may at any time designate one of the following laws as applicable to a maintenance obligation a) the law of any State of which either party is a national at the time of the designation; b) the law of the State of the habitual residence of either party at the time of designation; c) the law designated by the parties as applicable, or the law in fact applied, to their property regime; d) the law designated by the parties as applicable, or the law in fact applied, to their divorce or legal separation. (2) Such agreement shall be in writing or recorded in any medium, the information contained in which is accessible so as to be usable for subsequent reference, and shall be signed by both parties. (3) Paragraph 1 shall not apply to maintenance obligations in respect of a person under the age of 18 years or of an adult who, by reason of an impairment or insufficiency of his or her personal faculties, is not in a position to protect his or her interest. (4) Notwithstanding the law designated by the parties in accordance with paragraph 1, the question of whether the creditor can renounce his or her right to maintenance shall be determined by the law of the State of the habitual residence of the creditor at the time of the designation. (5) Unless at the time of the designation the parties were fully informed and aware of the consequences of their designation, the law designated by the parties shall not apply where the application of that law would lead to manifestly unfair or unreasonable consequences for any of the parties. Council decision of 30 November 2009 on the conclusion by the European Community of the Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations (2009/941/EC) Article 4 1. Within the Community, the rules of the Protocol shall apply provisionally, without prejudice to Article 5 of this Decision, from 18 June 2011, the date of

Choice-of-Court and Choice-of-Law Clauses  789

application of Regulation (EC) No 4/2009, if the Protocol has not yet entered into force on that date. 2. When concluding the Protocol, the Community shall make the following declaration to take into account the possible provisional application referred to in paragraph 1: ‘The European Community declares that it will apply the rules of the Protocol provisionally from 18 June 2011, the date of application of Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations (3), if the Protocol has not entered into force on that date in accordance with Article 25(1) thereof.’ Article 5 1. Notwithstanding Article  22 of the Protocol, the rules of the Protocol shall also determine the law applicable to maintenance claimed in a Member State relating to a period prior to the entry into force or the provisional application of the Protocol in the Community in situations where, under Regulation (EC) No 4/2009, proceedings are instituted, court settlements are approved or concluded and authentic instruments are established as from 18 June 2011, the date of application of Regulation (EC) No 4/2009. 2. When concluding the Protocol, the Community shall make the following declaration: ‘The European Community declares that it will apply the rules of the Protocol also to maintenance claimed in one of its Member States relating to a period prior to the entry into force or the provisional application of the Protocol in the Community in situations where, under Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, proceedings are instituted, court settlements are approved or concluded and authentic instruments are established as from 18 June 2011, the date of application of the said Regulation.

Matrimonial Property Regime Regulation

Article 5 Jurisdiction in cases of divorce, legal separation or marriage annulment 1. Without prejudice to paragraph 2, where a court of a Member State is seised to rule on an application for divorce, legal separation or marriage annulment

790  Francesca Clara Villata and Lenka Válková

pursuant to Regulation (EC) No 2201/2003, the courts of that State shall have jurisdiction to rule on matters of the matrimonial property regime arising in connection with that application. 2. Jurisdiction in matters of matrimonial property regimes under paragraph 1 shall be subject to the spouses’ agreement where the court that is seised to rule on the application for divorce, legal separation or marriage annulment: (a) is the court of a Member State in which the applicant is habitually resident and the applicant had resided there for at least a year immediately before the application was made, in accordance with the fifth indent of Article 3(1)(a) of Regulation (EC) No 2201/2003; (b) is the court of a Member State of which the applicant is a national and the applicant is habitually resident there and had resided there for at least six months immediately before the application was made, in accordance with sixth indent of Article 3(1)(a) of Regulation (EC) No 2201/2003; (c) is seised pursuant to Article 5 of Regulation (EC) No 2201/2003 in cases of conversion of legal separation into divorce; or (d) is seised pursuant to Article 7 of Regulation (EC) No 2201/2003 in cases of residual jurisdiction. 3. If the agreement referred to in paragraph 2 of this Article is concluded before the court is seised to rule on matters of matrimonial property regimes, the agreement shall comply with Article 7(2). Article 7 Choice of court 1. In cases which are covered by Article  6, the parties may agree that the courts of the Member State whose law is applicable pursuant to Article 22, or point (a) or (b) of Article 26(1), or the courts of the Member State of the conclusion of the marriage shall have exclusive jurisdiction to rule on matters of their matrimonial property regime. 2. The agreement referred to in paragraph 1 shall be expressed in writing and dated and signed by the parties. Any communication by electronic means which provides a durable record of the agreement shall be deemed equivalent to writing. Article 22 Choice of the applicable law 1. The spouses or future spouses may agree to designate, or to change, the law applicable to their matrimonial property regime, provided that that law is one of the following: (a) the law of the State where the spouses or future spouses, or one of them, is habitually resident at the time the agreement is concluded; or

Choice-of-Court and Choice-of-Law Clauses  791

(b) the law of a State of nationality of either spouse or future spouse at the time the agreement is concluded. 2. Unless the spouses agree otherwise, a change of the law applicable to the matrimonial property regime made during the marriage shall have prospective effect only. 3. Any retroactive change of the applicable law under paragraph 2 shall not adversely affect the rights of third parties deriving from that law. Article 23 Formal validity of the agreement on a choice of applicable law 1. The agreement referred to in Article 22 shall be expressed in writing, dated and signed by both spouses. Any communication by electronic means which provides a durable record of the agreement shall be deemed equivalent to writing. 2. If the law of the Member State in which both spouses have their habitual residence at the time the agreement is concluded lays down additional formal requirements for matrimonial property agreements, those requirements shall apply. 3. If the spouses are habitually resident in different Member States at the time the agreement is concluded and the laws of those States provide for different formal requirements for matrimonial property agreements, the agreement shall be formally valid if it satisfies the requirements of either of those laws. 4. If only one of the spouses is habitually resident in a Member State at the time the agreement is concluded and that State lays down additional formal requirements for matrimonial property agreements, those requirements shall apply. Article 24 Consent and material validity 1. The existence and validity of an agreement on choice of law or of any term thereof, shall be determined by the law which would govern it pursuant to Article 22 if the agreement or term were valid. 2. Nevertheless, a spouse may, in order to establish that he did not consent, rely upon the law of the country in which he has his habitual residence at the time the court is seised if it appears from the circumstances that it would not be reasonable to determine the effect of his conduct in accordance with the law specified in paragraph 1.

792  Francesca Clara Villata and Lenka Válková Article 69 Transitional provisions 1. This Regulation shall apply only to legal proceedings instituted, to authentic instruments formally drawn up or registered and to court settlements approved or concluded on or after 29 January 2019 subject to paragraphs 2 and 3. 2. If the proceedings in the Member State of origin were instituted before 29 January 2019, decisions given after that date shall be recognised and enforced in accordance with Chapter IV as long as the rules of jurisdiction applied comply with those set out in Chapter II. 3. Chapter III shall apply only to spouses who marry or who specify the law applicable to the matrimonial property regime after 29 January 2019.

Regulation on the Property Consequences of Registered Partnerships

Article 5 Jurisdiction in cases of dissolution or annulment 1. Where a court of a Member State is seised to rule on the dissolution or annulment of a registered partnership, the courts of that State shall have jurisdiction to rule on the property consequences of the registered partnership arising in connection with that case of dissolution or annulment, where the partners so agree. 2. If the agreement referred to in paragraph 1 of this Article is concluded before the court is seised to rule on matters of the property consequences of the registered partnership, the agreement shall comply with Article 7. Article 7 Choice of court 1. In cases which are covered by Article 6, the parties may agree that the courts of the Member State whose law is applicable pursuant to Article 22 or Article 26(1) or the courts of the Member State under whose law the registered partnership was created shall have exclusive jurisdiction to rule on the property consequences of their registered partnership. 2. The agreement referred to in paragraph 1 shall be expressed in writing and dated and signed by the parties. Any communication by electronic means which provides a durable record of the agreement shall be deemed equivalent to writing.

Choice-of-Court and Choice-of-Law Clauses  793 Article 22 Choice of the applicable law 1. The partners or future partners may agree to designate or to change the law applicable to the property consequences of their registered partnership, provided that that law attaches property consequences to the institution of the registered partnership and that that law is one of the following: (a) the law of the State where the partners or future partners, or one of them, is habitually resident at the time the agreement is concluded (b) the law of a State of nationality of either partner or future partner at the time the agreement is concluded, or (c) the law of the State under whose law the registered partnership was created. 2. Unless the partners agree otherwise, a change of the law applicable to the property consequences of their registered partnership made during the partnership shall have prospective effect only. 3. Any retroactive change of the applicable law under paragraph 2 shall not adversely affect the rights of third parties deriving from that law. Article 23 Formal validity of the agreement on a choice of applicable law 1. The agreement referred to in Article 22 shall be expressed in writing, dated and signed by both partners. Any communication by electronic means which provides a durable record of the agreement shall be deemed equivalent to writing. 2. If the law of the Member State in which both partners have their habitual residence at the time the agreement is concluded lays down additional formal requirements for partnership property agreements, those requirements shall apply. 3. If the partners are habitually resident in different Member States at the time the agreement is concluded and the laws of those States provide for different formal requirements for partnership property agreements, the agreement shall be formally valid if it satisfies the requirements of either of those laws. 4. If only one of the partners is habitually resident in a Member State at the time the agreement is concluded and that State lays down additional formal requirements for partnership property agreements, those requirements shall apply. Article 24 Consent and material validity 1. The existence and validity of an agreement on choice of law, or of any term thereof, shall be determined by the law which would govern it pursuant to Article 22 if the agreement or term were valid.

794  Francesca Clara Villata and Lenka Válková

2. Nevertheless, a partner may, in order to establish that he did not consent, rely upon the law of the country in which he has his habitual residence at the time the court is seised if it appears from the circumstances that it would not be reasonable to determine the effect of his conduct in accordance with the law specified in paragraph 1. Article 69 Transitional provisions 1. This Regulation shall apply only to legal proceedings instituted, to authentic instruments formally drawn up or registered and to court settlements approved or concluded on or after 29 January 2019 subject to paragraphs 2 and 3 2. If the proceedings in the Member State of origin were instituted before 29 January 2019, decisions given after that date shall be recognised and enforced in accordance with Chapter IV as long as the rules of jurisdiction applied comply with those set out in Chapter II. 3. Chapter III shall apply only to partners who register their partnership or who specify the law applicable to the property consequences of their registered partnership after 29 January 2019.

Succession Regulation

Article 5 Choice-of-court agreement 1. Where the law chosen by the deceased to govern his succession pursuant to Article 22 is the law of a Member State, the parties concerned may agree that a court or the courts of that Member State are to have exclusive jurisdiction to rule on any succession matter. 2. Such a choice-of-court agreement shall be expressed in writing, dated and signed by the parties concerned. Any communication by electronic means which provides a durable record of the agreement shall be deemed equivalent to writing. Article 7 Jurisdiction in the event of a choice of law The courts of a Member State whose law had been chosen by the deceased pursuant to Article 22 shall have jurisdiction to rule on the succession if: (a) a court previously seised has declined jurisdiction in the same case pursuant to Article 6;

Choice-of-Court and Choice-of-Law Clauses  795

(b) the parties to the proceedings have agreed, in accordance with Article 5, to confer jurisdiction on a court or the courts of that Member State; or (c) the parties to the proceedings have expressly accepted the jurisdiction of the court seised. Article 22 Choice of law 1. A person may choose as the law to govern his succession as a whole the law of the State whose nationality he possesses at the time of making the choice or at the time of death. A person possessing multiple nationalities may choose the law of any of the States whose nationality he possesses at the time of making the choice or at the time of death. 2. The choice shall be made expressly in a declaration in the form of a disposition of property upon death or shall be demonstrated by the terms of such a disposition. 3. The substantive validity of the act whereby the choice of law was made shall be governed by the chosen law. 4. Any modification or revocation of the choice of law shall meet the requirements as to form for the modification or revocation of a disposition of property upon death. Article 23 The scope of the applicable law 1. The law determined pursuant to Article  21 or Article  22 shall govern the succession as a whole. 2. That law shall govern in particular: (a) the causes, time and place of the opening of the succession; (b) the determination of the beneficiaries, of their respective shares and of the obligations which may be imposed on them by the deceased, and the determination of other succession rights, including the succession rights of the surviving spouse or partner; (c) the capacity to inherit; (d) disinheritance and disqualification by conduct; (e) the transfer to the heirs and, as the case may be, to the legatees of the assets, rights and obligations forming part of the estate, including the conditions and effects of the acceptance or waiver of the succession or of a legacy; (f) the powers of the heirs, the executors of the wills and other administrators of the estate, in particular as regards the sale of property and the payment of creditors, without prejudice to the powers referred to in Article  29(2) and (3); (g) liability for the debts under the succession;

796  Francesca Clara Villata and Lenka Válková

(h) the disposable part of the estate, the reserved shares and other restrictions on the disposal of property upon death as well as claims which persons close to the deceased may have against the estate or the heirs; (i) any obligation to restore or account for gifts, advancements or legacies when determining the shares of the different beneficiaries; and (j) the sharing-out of the estate. Article 24 Dispositions of property upon death other than agreements as to succession 1. A disposition of property upon death other than an agreement as to succession shall be governed, as regards its admissibility and substantive validity, by the law which, under this Regulation, would have been applicable to the succession of the person who made the disposition if he had died on the day on which the disposition was made. 2. Notwithstanding paragraph 1, a person may choose as the law to govern his disposition of property upon death, as regards its admissibility and substantive validity, the law which that person could have chosen in accordance with Article 22 on the conditions set out therein. 3. Paragraph 1 shall apply, as appropriate, to the modification or revocation of a disposition of property upon death other than an agreement as to succession. In the event of a choice of law in accordance with paragraph 2, the modification or revocation shall be governed by the chosen law. Article 25 Agreements as to succession 1. An agreement as to succession regarding the succession of one person shall be governed, as regards its admissibility, its substantive validity and its binding effects between the parties, including conditions for its dissolution, by the law which, under this Regulation, would have been applicable to the succession of that person if he had died on the day on which the agreement was concluded. 2. An agreement as to succession regarding the succession of several persons shall be admissible only if it is admissible under all the laws which, under this Regulation, would have governed the succession of all the persons involved if they had died on the day on which the agreement was concluded. An agreement as to succession which is admissible pursuant to the first subparagraph shall be governed, as regards its substantive validity and its binding effects between the parties, including conditions for its dissolution, by the law, from among those referred to in the first subparagraph, with which it has the closest connection.

Choice-of-Court and Choice-of-Law Clauses  797

3. Notwithstanding paragraphs 1 and 2, the parties may choose as the law to govern their agreement as to succession, as regards its admissibility, its substantive validity and its binding effects between the parties, including conditions for its dissolution, the law which the person or one of the persons whose estate is involved could have chosen in accordance with Article 22 on the conditions set out therein. Article 27 Formal validity of dispositions of property upon death made in writing 1. A disposition of property upon death made in writing shall be valid as regards form if its form complies with the law: (a) of the State in which the disposition was made or the agreement as to succession concluded; (b) of a State whose nationality the testator or at least one of the persons whose succession is concerned by an agreement as to succession possessed, either at the time when the disposition was made or the agreement concluded, or at the time of death; (c) of a State in which the testator or at least one of the persons whose succession is concerned by an agreement as to succession had his domicile, either at the time when the disposition was made or the agreement concluded, or at the time of death; (d) of the State in which the testator or at least one of the persons whose succession is concerned by an agreement as to succession had his habitual residence, either at the time when the disposition was made or the agreement concluded, or at the time of death; or (e) in so far as immovable property is concerned, of the State in which that property is located. The determination of the question whether or not the testator or any person whose succession is concerned by the agreement as to succession had his domicile in a particular State shall be governed by the law of that State. 2. Paragraph 1 shall also apply to dispositions of property upon death modifying or revoking an earlier disposition. The modification or revocation shall also be valid as regards form if it complies with any one of the laws according to the terms of which, under paragraph 1, the disposition of property upon death which has been modified or revoked was valid. 3. For the purposes of this Article, any provision of law which limits the permitted forms of dispositions of property upon death by reference to the age, nationality or other personal conditions of the testator or of the persons whose succession is concerned by an agreement as to succession shall be deemed to pertain to matters of form. The same rule shall apply to the qualifications to be possessed by any witnesses required for the validity of a disposition of property upon death.

798  Francesca Clara Villata and Lenka Válková Article 83 Transitional provisions 1. This Regulation shall apply to the succession of persons who die on or after 17 August 2015. 2. Where the deceased had chosen the law applicable to his succession prior to 17 August 2015, that choice shall be valid if it meets the conditions laid down in Chapter III or if it is valid in application of the rules of private international law which were in force, at the time the choice was made, in the State in which the deceased had his habitual residence or in any of the States whose nationality he possessed. 3. A disposition of property upon death made prior to 17 August 2015 shall be admissible and valid in substantive terms and as regards form if it meets the conditions laid down in Chapter III or if it is admissible and valid in substantive terms and as regards form in application of the rules of private international law which were in force, at the time the disposition was made, in the State in which the deceased had his habitual residence or in any of the States whose nationality he possessed or in the Member State of the authority dealing with the succession. 4. If a disposition of property upon death 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.

39 EUFam’s Policy Guidelines* EDITED BY ILARIA VIARENGO AND FILIPPO MARCHETTI** CONTRIBUTORS: CARMEN AZCÁRRAGA MONZONÍS, MARIA CATERINA BARUFFI, DILETTA DANIELI, MIRJAM ESCHER, ROSARIO ESPINOSA CALABUIG, AMANDINE FAUCON ALONSO, CATERINA FRATEA, ARANTXA GANDÍA SELLENS, FILIPPO MARCHETTI, MARTA REQUEJO ISIDRO, PHILIPPOS SIAPLAOURAS, LENKA VÁLKOVÁ, ILARIA VIARENGO, JOSEF WITTMANN AND MIRELA ŽUPAN

I. Introduction One of the deliverables of the EUFam’s Project is to formulate policy guidelines for amendments to the current Regulations, and to submit them to the EU legislature with a view to taking further steps in the direction of removing the current obstacles to the free movement of persons. Currently, the European legislation on family matters is spread out over multiple Regulations that regulate in a fragmentary, yet interconnected, manner relationships of a different nature. The situation gets more complicated with the multilateral agreements previously acceded to by Member States. Recently such agreements which fall into the external competence are adopted directly by the EU. The multitude of Regulations applicable to family matters and the number of variables they put forth in relation to both the grounds of jurisdiction and the applicable law, as well as the mechanisms for recognition and enforcement of foreign judgments, pave the way to several coordination problems. When spouses file for a divorce, the court will therefore have to determine its jurisdiction based on the Brussels IIa Regulation, but the court might also have to apply other European instruments or even national private international law, in order to establish jurisdiction for any other (related) claim. * Disclaimer: This publication has been produced with financial support of the ‘Civil Justice Programme’ of the European Commission. The contents of the publication are the sole responsibility of the contributors, and can in no way be taken to reflect the views of the European Commission. ** The Policy Guidelines have been also circulated among the members of the EUFam’s Working Group on Policy Guidelines: E Bergamini, M Caliaro, L Carballo Piñeiro, G Castelletti, E Chiaretto, E D’Alessandro, M Escher, R Espinosa Calabuig, JL Ferrer Sama, C Fratea, A Gandia Sellens, U Giacomelli, A Lang, O Lopes Pegna, A Lovrinov, F Marchetti, I Medic, D Munoz, G Palao Moreno, P Poretti, J Re, P Tamborero, M del Pilar Tintoré Garriga, L Válková, I Viarengo, FC Villata, J Wittmann, M Župan.

800  Ilaria Viarengo and Filippo Marchetti The chances of multiplication of potential fora are further emphasised by the CJEU case law.1 The piecemeal approach of the European legislation may result in multiple courts simultaneously hearing cases concerning the same parties and essentially the same issues. Beside this example, a few other issues have been encountered in the case law.2 All the issues listed below were addressed in the EUFam’s First Assessment Report, in a few EUFam’s national reports and discussed during the International Exchange Seminar held in Luxembourg in May 2017. In addition, it must be highlighted that this document takes into consideration the Brussels IIter Proposal. This chapter is divided into two parts: 1. Cross-cutting issues, dealing with some issues regarding aspects related to all EU family law instruments. 2. Specific issues regarding the existing legal tools, focusing on problems encountered in the EUFam’s survey. Each issue is analysed by assessing the problem, formulating a policy recommendation, and, possibly, proposing an article amendment.

II.  Cross-Cutting Issues A.  Coincidence of Forum and Ius3 i. Assessment A main issue is the discrepancy and the lack of coordination between the grounds of jurisdiction and the connecting factors set by the Brussels IIa and the Rome III Regulations respectively. As pointed out in the EUFam’s national seminars, the coincidence between forum and ius ensures a swift application of the law and limits additional delays and costs relating to the application of a foreign law.4 This occurs for several reasons. First, judges are obviously more acquainted with the application of their own national law, which means that they will be more thorough and precise when applying their law. Second, although EU integration greatly contributed to the integration of the EU national legal systems, linguistic differences still constitute an obstacle in ascertaining and applying a foreign law, especially when it comes to gathering interpretative practice and lower-courts case law. Finally, applying several laws to the same proceeding may have the side effect of leading to results that may not be considered entirely fair due to the potential incompatibility of the various rules applied. 1 eg Case C-168/08 Laszlo Hadadi (Hadady) v Csilla Marta Mesko, épouse Hadadi (Hadady) [2009] ECR I-06871, ECLI:EU:C:2009:474; Case C-184/14 A v B [2015] ECLI:EU:C:2015:479. 2 See I Viarengo and FC Villata (eds), First Assessment Report on the case-law collected by the Research Consortium (EUFam’s Project, 2016) at www.eufams.unimi.it/wp-content/uploads/2017/01/EUFAMS-FirstAssessment-Report-of-the-collected-case-law.pdf, as well as The EUFam’s database at www.eufams.unimi.it. 3 This section is attributed to I Viarengo and F Marchetti. 4 A Gandia Sellens, C Camara, A Faucon Alonso, Ph Siaplaouras, Report on Internationally Shared Good Practices (EUFam’s Project, 2016) 14 at www.eufams.unimi.it/wp-content/uploads/2017/06/Report-onInternationally-Shared-Good-Practices-v2.pdf; R Espinosa Calabuig and L Carballo Piñeiro, Report on Spanish Good Practices (EUFam’s Project, 2016) 6 at www.eufams.unimi.it/wp-content/uploads/2017/01/ EUFAMS-Spanish-report-on-good-practices.pdf.

EUFam’s Policy Guidelines  801

ii. Recommendation Even if a complete coordination does not appear uncomplicated to achieve due to the intrinsic multifaceted nature of family law, two solutions may be envisaged. First, the introduction of new rules on choice-of-court-agreements in the upcoming Brussels IIa Recast Regulation would certainly be welcome. This need will become even more urgent once the Regulation on matrimonial property regimes is in force. Indeed, whenever a couple has changed their habitual residence during the marriage, Article 26(1) of this Regulation leads to the application of the law of the first common habitual residence. However, in such circumstances, based on the other Regulations, jurisdiction normally lies with the courts of the present or last habitual residence of the spouses, and not with the court of the state of the first common habitual residence. Therefore, courts will have to apply a foreign law, which is not intrinsically negative, but it casts shadows on procedural efficiency whenever other aspects of the proceeding are regulated by a different law. This is also true when one of the spouses dies, provided that under the Succession Regulation the court of the last habitual residence of the deceased has jurisdiction on succession and, by virtue of Article 4 of the Matrimonial Property Regimes Regulation, also on matters relating to the connected matrimonial property regime. Another solution may be to follow the same approach as the Succession Regulation also in the framework of the Brussels IIa Regulation. Although this Regulation does not provide for an independent choice of court, it provides for a choice-of-court agreement in favour of the court of the State whose law the parties have chosen.

B.  Consolidation of Proceedings5 i. Assessment a.  Spousal Disputes The Brussels IIa Regulation and the Maintenance Regulation are part of the European Regulations applicable to family matters. They provide grounds to establish jurisdiction in cross-border family cases. While both cover child-related matters, this section will mainly focus on spouse-related disputes. Indeed, litigation involving children requires specific rules to protect their best interests. They will be dealt with further below. b.  Non-Alignment of the Jurisdictional Grounds Article 3 of the Brussels IIa Regulation provides for six grounds of jurisdiction based on habitual residence, and one on nationality,6 while the Maintenance Regulation only relies on two grounds linked to habitual residence (of the debtor and of the creditor).7 The latter additionally offers the possibility to seise the court having jurisdiction over



5 This 6 Art 7 Art

section is attributed to A Gandia Sellens and A Faucon Alonso. 3 of the Brussels IIa Regulation. 3(a) and (b) of the Maintenance Regulation.

802  Ilaria Viarengo and Filippo Marchetti matrimonial matters or parental responsibility.8 Due to this lack of consistency between jurisdictional grounds, parties cannot always seise the same court for each dispute. This is, for example, the case when the court seised for divorce is the court of a party’s nationality, as this option does not exist for maintenance. The opportunity to bring such claims as ancillary to matrimonial matters is also proscribed by the Regulation when the jurisdiction of that court is based on the nationality of one of the parties (Article 3(c) Maintenance Regulation). c.  Alternative Grounds of Jurisdiction Besides the lack of consistency, an additional difficulty arises because the abovementioned different grounds of jurisdiction are set alternatively in both the Brussels IIa and Maintenance Regulations. It means that none of the jurisdictions designated prevail and that parties get an opportunity to opt for any of the possibilities listed. Since families covered by European instruments characteristically have cross-border features, those grounds usually point towards different countries. The outcome is a lack of certainty regarding the court to be seised and therefore undermines predictability as well as legal security. As a consequence, the so-called practice of ‘rushing to court’ is encouraged since a better informed party can seise the most advantageous court and oblige other courts to decline jurisdiction due to the lis pendens rules.9 This risk is especially significant since the conflict-of-laws rules are currently uniform only across seventeen Member States.10 Some courts will therefore apply their national conflict rules, which might differ from the European solution, and offer a result which favours one of the spouses.11 As an example, a Swedish husband living with his Swedish wife in Germany might ‘rush’ to the Swedish court, despite the stronger links with Germany, because that jurisdiction will apply their conflict-of-laws rules and apply Swedish law (the lex fori principle applies in Sweden).12 The divorce will consequently be granted more easily than if the German court had been seised.13 There are currently no possibilities for the disadvantaged spouse to counter that.

8 Art 3(c) and (d) of the Maintenance Regulation. 9 The Commission Staff Working Document, Impact Assessment, accompanying the document Proposal for a Council Regulation on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast), COM(2016) 411 final, 14, thoroughly acknowledges the rush to court issue. 10 The Rome III Regulation contains conflict-of-law rules for the 17 Member States party to the enhanced cooperation. 11 An article from the French Journal Le Monde highlighted a similar situation regarding the rush to, or away from, British courts, well known as a hub for getting divorced, mostly chosen by women, see www.lemonde. fr/referendum-sur-le-brexit/article/2016/07/08/le-brexit-inquiete-les-hommes-fortunes-en-instance-dedivorce_4966171_4872498.html. 12 e-justice.europa.eu/content_divorce-45-se-en.do?member=1. 13 In Sweden, except in specific circumstances, there are no requirements to be granted a divorce while in Germany the breakdown of the marriage must be established (sec 1565(1) of the German Civil Code, e-justice.europa.eu/content_divorce-45-en.do).

EUFam’s Policy Guidelines  803 d.  Choice of Court Further difficulties in applying the Regulations regard the missing possibility of­ choosing the competent court. Such an opportunity is offered in Article 4 of the Maintenance Regulation while no equivalent provisions exist in Brussels IIa. The operation of Article 4 of the Maintenance Regulation is consequently undermined in practice as parties who decide to join the maintenance claim to the divorce proceedings end up in greater uncertainty due to the divorce court not being determined in advance. It also creates an enhanced ‘rush to court’ when the divorce court is chosen to deal with maintenance as the court first seised for divorce will have competence for both matters. If parties desire certainty for maintenance, they might opt for the other grounds offered by Article 4 of the Maintenance Regulation: the court of nationality or habitual r­ esidence. However, they will subsequently lose the guarantee of having the proceedings dealt with by the same court since the chosen court might not be the one having jurisdiction regarding divorce. e.  The Problems The impediments discussed are mostly problematic because they lead to different courts possibly having jurisdiction regarding various matters related to the same relationship. This multiplication of proceedings constitutes a risk of having contradictory judgments and entails increased judicial expenses and delays,14 which contradicts the purpose of those instruments. Additionally, the absence of coherence between both Regulations renders their understanding and application difficult not only for parties but also for legal practitioners and judges.

ii.  Recommendations – Proposed Amendments to the Brussels IIa Regulation To tackle both difficulties and strengthen the functioning of European family law, various proposals are suggested. a.  Relationships between Spouses To prevent the so-called ‘rush to court’ that currently arises from the alternative grounds set in the Regulation and the lack of uniform conflict-of-laws rules, the grounds of jurisdiction set in Article 3 of Brussels IIa should be reduced and placed in a hierarchical order. Such a policy would result in only one court having jurisdiction. A court seised in violation of the established order would thus have to decline jurisdiction, consequently undermining the possibility of rushing to court. The risk of parallel proceedings

14 Specialised legal advice required in different Member States, due to multiple proceedings and the risk of a rush to court, multiplies the costs, which can consequently reach up to 15,000 EUR according to the Impact Assessment on Brussels IIter Proposal (n 9) 15.

804  Ilaria Viarengo and Filippo Marchetti and contradictory judgments as well as the related costs are thus reduced while legal predictability and security is enhanced. As a suggestion, based on the policy approach currently followed in European family law, the main ground would be the jurisdiction of the Member States where the couple has its common habitual residence, or failing that, the last common habitual residence. It is indeed largely accepted that such a court would have sufficient connection with the couple to be able to efficiently settle their dispute. In the situation where the couple no longer share a common habitual residence, the ground based on their last common residence could still be kept provided one spouse is still living in that country or that they lived there for a sufficient time. Should neither of them live there any longer, the habitual residence of the defendant would be applicable. In the situation where none of the grounds above points towards a Member State, then Article 7 on residual jurisdiction allows for national conflict rules to be applied to prevent a denial of justice. Article 7 could be replaced by a similar provision which would point towards the court of a Member State where the applicant has his current habitual residence.15 The main argument that has blocked the implementation of the hierarchy­ possibility is the lack of flexibility that a single competent court entails. Such a configuration might, indeed, not meet the necessary adaptation to the higher mobility of cross-border couples and their specific needs. Additionally, it generates a political hurdle in the sense that it results in indirectly designating the conflict-of-laws rules although some Member States have not agreed to them.16 As an example, Sweden would have to accept that when it is not the country of common habitual residence of the spouses, it will not be possible to seise the Swedish court and thereby apply Swedish law.17 Such impediments could be countered by a combination of two additional policies: flexibility can indeed occur ex ante thanks to a choice of court possibility and through an ex post transfer of the proceedings to a better placed court. Both policies are discussed in the following section. b.  Ex Ante: Introduction of Party Autonomy A necessary counterpart to the rigidity of hierarchy, among the grounds of jurisdiction, is the introduction of a choice of court possibility. It would allow spouses who either (i) wish to be certain of the competent court despite their potential moves across countries, or (ii) wish to seise another court than the one designated by the general provision to thus agree on a court to hear their matrimonial dispute. As this opportunity currently exists under the Maintenance Regulation, amending Brussels IIa in this sense would also further enhance consistency among instruments while allowing spouses to ensure a consolidation of the proceedings that concern their family by opting for the same court.18 In the situation where consolidation is not their desire, they could also

15 It would apply when the defendant lives in a third state while the applicant lives in the EU. 16 Impact Assessment on Brussels IIter Proposal (n 9) 20. 17 The lex fori principle applies in Sweden, see above n 13. 18 Party autonomy regarding the competent court is also consistent with the policy approach followed by Art 5 of the Rome III Regulation, which offers the possibility to choose the law applicable to divorce and legal separation.

EUFam’s Policy Guidelines  805 refer to the choice-of-court provisions to designate different courts for matrimonial and maintenance matters. This would maximise flexibility for spouses without ­affecting predictability. These features are essential for cross-border families who tend to be connected to different states. Legal security is also maintained since such a court would have to be designated by a common agreement between both spouses. Due to the specificity of family matters, party autonomy ought to be limited to grounds that ensure a substantial connection between the court and the spouses.19 It is traditionally recognised that countries meeting this requirement are the countries of habitual residence or nationality of either of the spouses. Given the connection of couples with their common habitual residence, a possibility to choose that court should exist even though none of the spouses resides in that country any longer. Such options would align with Article 4 of the Maintenance Regulation, thus ensuring the possibility to consolidate proceedings through a choice of court. To completely align both instruments, an additional ground should be the court having jurisdiction for maintenance claims.20 Regarding the validity of the choice of court, the approach contained in the Maintenance Regulation could be followed as well. It entails a written agreement concluded by both parties at the latest when the court is seised. To strengthen the operation of the agreement and avoid contradictory judgments, this competence should be considered as exclusive. Besides the arguments above, a choice-of-court provision would entail the same advantages offered by hierarchy, ie, to prevent rush-to-court practices as well as ensuring reduction of costs incurred by multiple proceedings and specialised legal advice sought in different Member States. The impact assessment study ordered by the Commission has highlighted that 85 per cent of stakeholders are in favour of a limited choice of court available to spouses to settle their matrimonial dispute.21 It should, however, be noted that party autonomy might be politically difficult to accept for Member States averse to other forms of marriage. c.  Ex Post: Transfer of Jurisdiction The solutions based on the reduction of heads of jurisdiction, hierarchy and agreed jurisdiction should be complemented by introducing the possibility to transfer a case to a better-placed court. The idea of transfer to a court better placed to hear the case is already present in Article 15 of the Brussels IIa Regulation. However, this article is only applicable to disputes related to parental responsibility and is limited to very specific situations and subject to substantive conditions (notably, the better placement depends on the best interests of the child).22 19 It should be noted that party autonomy is currently being increased in many EU Member States’ family law. Cf, eg J M Scherpe, The Present and Future of European Family Law (Cheltenham, Edward Elgar Publishing, 2016) 69. 20 Art 4 of the Maintenance Regulation, vice versa, already offers the possibility to seise the court competent for matrimonial matters. 21 Impact Assessment on Brussels IIter Proposal (n 9) 22. 22 See in detail Case C-428/15 Child and Family Agency v JD [2016] ECLI:EU:C:2016:819.

806  Ilaria Viarengo and Filippo Marchetti Here, our proposal points to a rule which combines the philosophy behind the idea of transfer of jurisdiction and the connection among ancillary claims. Moreover, this proposal is aligned in an analogous manner to the one contained in the Green Paper on applicable law and jurisdiction in divorce matters presented by the Commission in 2005,23 and also discussed in the Commission Staff Working Document Impact Assessment of 2016.24 The scope of this rule would cover matrimonial matters, parental responsibility and maintenance claims. Therefore, a disposition in this regard would have to be included in both Brussels IIa and Maintenance Regulations. Concerning matrimonial matters, the suggested rule would contain a transfer of jurisdiction in favour of the court of another Member State, where proceedings on parental responsibility or maintenance are already ongoing (at an early stage),25 if such a consolidation is advisable on a caseby-case basis. Regarding the functioning of the rule, it would allow a consolidation of proceedings ex post. This means that when proceedings concerning a specific claim are at an early stage in the court of one Member State while other related claims are taking place in the courts of another state, the judge could decide to transfer the latter to concentrate proceedings. This mechanism would have to be applied only if certain conditions are met: its application would require the request of one of the parties and an assessment of the interests of justice at stake. Moreover, if among the involved claims there is one related to parental responsibility, the best interests of the child must be taken into consideration. A practical example concerning a case where this rule could be applicable would be a situation where a claim related to the divorce of a couple is filed in a Member State different from the Member State where that very same couple is involved in ongoing proceedings on parental responsibility or maintenance. This case might arise when a couple had already obtained a decision on legal separation, the questions on parental responsibility over the common children and maintenance are still unsolved, but in the meanwhile, one spouse files for divorce. Finally, the whole transfer mechanism presupposes a close communication among judges in close collaboration with the parties involved in the proceedings. The ideal scenario would be to reach a common decision concerning jurisdiction by the judges seised with different claims regulated by different family law instruments but, at the same time, related to the same parties. d.  Parental Responsibility The rules of jurisdiction on parental responsibility entail fewer problems of rushing-to-court or legal uncertainty since the available grounds of jurisdiction are

23 Green Paper on applicable law and jurisdiction in divorce matters COM/2005/0082 final. 24 Impact Assessment on Brussels IIter Proposal (n 9) paras 1.6.3 and 1.7. The idea of transfer was rejected because ‘it may be expected to be difficult to reach unanimity on the appropriate criteria defining in which circumstances a transfer should be permitted’. 25 Transfer will operate under the procedural rules of the Member States. It should also be noted that the ongoing proceedings for establishing provisional measures do not justify, in principle, such a transfer, since at such a stage the main proceedings are not deemed to have started yet.

EUFam’s Policy Guidelines  807 more limited,26 in general, than those currently listed for matrimonial matters. Therefore, the connections used to establish jurisdiction in this field are suitable. However, c­ onsolidation of proceedings in the field of parental responsibility is currently fragmented. Indeed, the rules of jurisdiction contained in Brussels IIa allow claims over parental responsibility before the same court exercising jurisdiction in matrimonial matters to be concentrated (Article 12(1) of the Brussels IIa Regulation). In parallel, the rules of jurisdiction of the Maintenance Regulation allow a maintenance claim ancillary to the proceedings concerning the status of a person, on the one hand and, on the other hand, to the proceedings concerning parental responsibility to be consolidated (Article 3(c) and (d) of the Maintenance Regulation). It is also worth mentioning here the possibility of transfer to a court better placed to hear the case, offered by Article 15 of the Brussels IIa Regulation. It could be argued that a judge could use this Article for transferring jurisdiction to the court seised with ongoing proceedings on matrimonial matters and maintenance, if this is done in the best interest of the child. However, this possibility of consolidation is only open if the claims have been filed in a way that permits jurisdiction to be seised in a particular order: first, using Article 3(c) of the Maintenance Regulation to consolidate the maintenance claim to the ongoing dispute on matrimonial matters; and, secondly, using Article 15 of the Brussels IIa Regulation to consolidate the claim over parental responsibility, filed shortly afterwards, to the ongoing proceedings on matrimonial matters and maintenance. The same consolidation is possible in another situation: when the parental responsibility claim is being heard by the court seised with a question of matrimonial matters (by virtue of Article 12 of the Brussels IIa Regulation) and the claim on maintenance is then added to those ongoing proceedings using the ground established in Article 3(d) of the Maintenance Regulation. In both cases, however, the consolidation is only possible when the first dispute brought to court is the one related to matrimonial matters. This fragmentary way of designing the rules does not allow for a consolidation of the claims related to matrimonial matters, parental responsibility and maintenance at the same time. It could be that one single court is competent to decide on these matters because the different instruments partially use similar connecting factors.27 However, there is no guarantee that only one court has jurisdiction. The parties may seise different courts for different aspects of the same dispute. Therefore, in the field of parental responsibility it would be necessary to either explicitly allow Article 15 of the Brussels IIa Regulation to be used for transferring jurisdiction to the court already seised with claims related to matrimonial matters and maintenance, in the interest of the child; or establish a new rule on transfer of jurisdiction in favour of the court already seised with those claims on matrimonial matters and maintenance, respecting the conditions of the request of one of the parties,

26 Although it should be noted that judges might differently understand the notion of ‘best interests of the child’, which might affect legal certainty. 27 As shown by certain judgments from the EUFam’s case law database: Audiencia Provincial Barcelona, 8 January 2015 No 10/2015, ESS20150108; Trib Belluno, 23 December 2014, ITF20141223; Trib Padova, 15 February 2016, ITF20160215.

808  Ilaria Viarengo and Filippo Marchetti the best interests of the child (which needs to be highlighted in matters of parental responsibility) and the interest of justice. In both cases, judicial communication among the judges involved should be fostered in order to reach a common decision as to the best placed court to hear the consolidated claims, if consolidation is advisable in the case at hand.

iii.  Recommendations: Proposed Amendments to the Maintenance Regulation The current operation of the Maintenance Regulation only permits limited avenues of rushing to the court. Although Article 3 of the Regulation provides for several alternative grounds of jurisdiction, they are more limited than in matrimonial matters: according to Article 4 of the Maintenance Regulation, jurisdiction lies either with: (a) the court of the creditor; or (b) at the defendant’s habitual residence. Article 4 also offers a possibility to bring the maintenance claim to the court seised regarding divorce or parental responsibility thus allowing for consolidation of those claims. Moreover, Article 4 provides for a choice of court, and if the parties use this option, the incentive of filing first vanishes. It should also be noted that the claimant in maintenance cases is normally considered the ‘weaker’ party, due to the supposed imbalance in economic terms of the claimant in comparison to the defendant. Therefore, the establishment of alternative grounds of jurisdiction in this area is not as problematic as concerning matrimonial matters. In this vein, the current design of the grounds of jurisdiction in the Maintenance Regulation should be kept. However, difficulties regarding the operation of Articles 3 and 4 of the Maintenance Regulation occur in two situations. First, when the divorce court has been seised based on the nationality of the parties: Article 3(c) does not allow the spouses to bring their maintenance claim to that forum. Secondly, the possibilities of consolidation offered are set in two separate options, ie Article 3(c) and (d): an a priori combination of both sets of rules is not possible in order to give jurisdiction to one court to deal with all the claims. A rule permitting the transfer of jurisdiction should be added to counter the two difficulties brought up and to allow consolidation, ex post, when options offered by Article 3 have not been followed. This rule would operate on a case-by-case basis and when certain conditions are met: 1) if the consolidation is requested by one of the parties; 2) if the consolidation serves the interests of justice;28 3) if it responds to the best interests of the child;29 and 4) if the judges in charge of the relevant courts have reached a common decision on jurisdiction.

28 It should be observed that consolidation is not always appropriate. The judges involved should consider if consolidation is really needed to solve the claims in terms of substance, taking into account that the parties involved in the different ongoing proceedings are the same and the subject matters of their disputes fall within family law and, therefore, might be connected to a certain extent. 29 In this vein, the CJEU already stated that the best interest of the child should be assessed when the jurisdiction over maintenance claims is exercised by virtue of Art 3(d) of the Maintenance Regulation (when the maintenance claim is ancillary to the relevant proceedings concerning parental responsibility). See Case C-184/14 A v B (n 1) para 46.

EUFam’s Policy Guidelines  809

C.  Proof of Foreign Law30 In general, the burden of proof of foreign law and the related costs constitute practical difficulties.31 At the EU level, the European Judicial Network is not working satisfactorily. The reach of this mechanism appears to be limited as it is mainly relevant in cases where parties agree about the content of foreign law. Overall, the assessment of foreign law relies on experts which entail high costs. It may also happen that in the jurisdictions which provide for the ex officio application and ascertainment of foreign law by judges, the parties must plead and prove foreign law. The application of the law of third States is even more problematic given its limited access. The creation of a database – especially for African and Asian law – has been suggested. In the framework of the project, the reviewed case law shows that a third state’s law is often applied as the law of the common nationality of the spouses. This law also tends to be chosen for cultural reasons or to secure recognition and enforcement. In more general terms, there should be a clear stand at the EU level as to the mandatory character of conflict-of-laws rules. This is crucial, to ensure the effectiveness of EU private international law. There are currently some Member States where private international law is simply left out if no party refers to it. The analysis of the gathered case law shows that regarding applicable law, it often occurs that maintenance, as well as parental responsibility issues, are regulated as if they were ‘de facto issues’, without any reference to the relevant Regulations. The courts, after having established their jurisdiction based on the Brussels IIa Regulation and the Maintenance Regulation, rule on the merit, applying their own law. It is regrettable that some national courts only apply foreign law when it is requested by the parties. That is not compatible with the nature of EU Regulations. However, it always gets back to the question of costs.32 In the field of EU Family Law, no Regulation expressly regulates either the imperative nature of its conflict rules, or provides that the applicable law should be applied ex officio by the judge. However, the absence of these rules should not be interpreted in the sense that both issues depend on the PIL of the forum. Certainly, the existence of many divergences among Member States in this field make it difficult to regulate these issues at European level. However, it would be convenient in order to strengthen the functioning of the single market.

D.  Judicial Training and Judicial and Administrative Cooperation33 The cooperation mechanism, be it judicial, administrative or mixed, maximises the benefits of private international law rules. Efficient dispute resolution often is at stake



30 This

paragraph shall be attributed to R Espinosa Calabuig. EUFam’s First Assessment Report (n 2) 88–89. 32 ibid 22. 33 This section is attributed to M Župan. 31 See

810  Ilaria Viarengo and Filippo Marchetti as families move around the EU. Courts are faced with fact finding in foreign countries, with evidence in a foreign language, and hearing parties from abroad. In family disputes, social reports may be drafted or protective measures issued, in other Member States. Jurisdictional criteria in transfer proceedings, as well as in child abduction cases rely on cooperation.34 Establishing lis pendens and other parallel procedure, like a rendered provisional measure, requires effective mechanism of cooperation. Lack of formal and informal communication is evidenced by the collected case law. Scarcely any record on usage of the European Judicial Network may be found. The benefits of the International Hague Network of Judges (IHNJ) are not fully employed; moreover, some of the Member States have no judge nominated to this network. Coherence amongst these parallel systems exists, as well as communication amongst nominated judges. This good practice should be pushed forward to every single Member State. External EU competence should be used to achieve cooperation in third state cases relating to the Hague Conference on Private International Law (HCCH) Contracting States.

i.  Proposal for a Recital Member States should foster employment of any available cooperation mechanism, EU or international. Synergy with IHNJ should be promoted in international cases relating to relevant HCCH Conventions contracting states. Additional consideration in relation to cooperation relates to authorities which are not afforded by one. Case law has particularly addressed the civil status records office and public notary. In regard to the first, lack of a mechanism of cooperation for civil status records offices hampers the effectiveness of legal protection in the event of giving effect to parental responsibility decisions rendered in another Member State, as far as a public notary is concerned, and its actions mainly relate to successions proceedings. At a national seminar, the judges highlighted a difficulty in determining the crossborder element in the succession, also due to the limited information received from the parties. This seems particularly problematic in Member States which still adhere to initiations of proceedings in succession matters ex officio, as Croatia does for any Croatian deceased national. Without participation of the parties, the notary can only establish the domicile (from documents received from the police) but not the habitual residence of the deceased. The latter is decisive for proper determination of jurisdiction (Article 4) and applicable law (Article 21) under the Successions Regulation. The notary lacks information on the property located outside Croatia as well. The benefits of cooperation in relation to lis pendens have been addressed previously. The mechanism of the Central Authority system is envisioned as a logistical support to actors of cross-border parental responsibility procedures. An enormous workload, combined with limited funding and scarce human resources hinder achieving these goals. The system of Central Authorities in Brussels IIa cases has been

34 On the cooperation among Central Authorities in cases of child abduction, see also First Assessment Report (n 2) 42 ff.

EUFam’s Policy Guidelines  811 criticised for its time-consuming proceedings, lack of transparency, inconsistency and diverging practice throughout the EU. Internal rules on the organisation and structure of the Central Authority lead to different treatment of citizens in various EU countries. Problematic implementing legislation was highlighted by the CJEU’s ruling in C-283/16 S regarding the Maintenance Regulation as well. Provisions relating to the functioning of the Central Authority have been extensively altered by the Brussels IIa Recast Proposal. Such a course of development is laudable. However, some room for improvement remains. The overall objective of EU civil justice in family matters may not set aside international obligations that Members States ­individually, or the EU collectively, have towards Hague Conference on Private International Law. Such synergy is justified as EU has exclusive external competence in this area. Moreover, the Central Authority system of the regulations draws inspiration from such international instruments. Member States should be encouraged to synchronise the designation of a body to perform as the Central Authority under the interconnected international instruments. Having in mind the overlapping scope of application of the 1996 Hague Convention on the Protection of Children and 1980 Hague Child Abduction Convention with the Brussels IIa, and Maintenance Convention and the Regulation, overlapping of designated bodies should take place. Currently a number of Member States have designated different bodies, seated internally within different departments. Such a scheme impedes the functioning of the system as a whole. Hence, the EU should make sure that the abovementioned model of a Central Authority designation policy is abandoned. Another aspect of cooperation, completely overlooked by the Brussels IIa Recast Proposal, deserves further consideration. It is the internal (national) cooperation system, which is a prerequisite of international cooperation system. Lack of an obligation placed upon Member States to improve internal cooperation of a Central Authority with its intermediaries, amounts to ineffective international cooperation. Any concern that such a provision goes beyond the internal competence conferred to EU is unfounded. If Member States allow the EU to enact rules on Central Authorities they are obliged to make the system function. If they do not provide for its functioning individually, the principle of subsidiarity obliges the EU to engage with uniform rules. At the moment, no time frame for actions taken by Central Authority is set. The Brussels IIa Recast should bring uniformity to this area, with a general eightweek time limit, and three periods of six weeks for child abductions. However, more clarity is needed with regards to the moment the period starts. Namely, a vast majority of the applications are incomplete when they are first submitted to the receiving Central Authority. Is the set time frame counted from the moment of submission of the application or a complete application? The Brussels IIa Recast should also provide for a timeframe for urgent cases, though it may be problematic to define such urgent applications since all of the child-related matters could be considered urgent. Regulations addressed previously provide many valuable lessons. Long vacatio legis is an opportunity to address the government to review any national legislation that may be affected and provide smooth application of the new Regulations. Any authority that would be affected with its application should be addressed and prepared.

812  Ilaria Viarengo and Filippo Marchetti

E.  Enhanced Cooperation35 The EU should find appropriate ways of addressing Member States that are still not bound by this Regulation but have joined other systems of enhanced cooperation Regulation, such as matrimonial property. A multiplicity of legal sources jeopardises the smooth and proper administration of justice in cross-border cases.

III.  Brussels IIa Regulation A.  Matrimonial Matters i.  Same-Sex Marriage, Registered Partnerships36 a.  Assessment and Recommendation Regarding the material scope of application, there is a need for greater clarity as to whether the Regulation will address marriage in a broader sense including same-sex marriage. In the EUFam’s national reports and in the ‘Report on internationally shared good practices’ it was suggested that same-sex marriages should be included within the Brussels IIa Recast Regulation. In that case, a careful assessment of Article 3 of Brussels IIa Regulation would be advisable.37 Same-sex couples ought to have access to a jurisdiction to hear their judicial separation or divorce, which is not guaranteed in the current state of affairs. This is particularly true for those cases where a couple is made up of two citizens having the nationality of a EU country which does not recognise samesex marriages and who are both habitually resident in that country, but were validly married in another EU Member State. In fact, there would not be any court having jurisdiction for their separation under the Regulation. Therefore, Article 3 should be modified to allow couples who concluded a samesex marriage in the European Union to have at least one forum for dissolving their marriage.38 Moreover, it was argued that registered partnerships ought to be included within the Brussels IIa Recast Regulation. If so, it would be useful to add an additional ground of jurisdiction in the Member State where the registered partnership was registered,

35 This section is attributed to M Župan. 36 This section is attributed to M Escher and J Wittmann. 37 To clarify the inclusion of same-sex marriage a new Recital might be added to the Regulation, eg: ‘This regulation shall be applicable to all marriages and partnerships, regardless of the spouses’ sex. Hereby it shall be guaranteed that marriages and partnerships concluded in the European Union have at least one forum for dissolution.’ 38 cf the pending CJEU proceedings, Case C-673/16 Relu Adrian Coman and Others v Inspectoratul General pentru Imigrări and Ministerul Afacerilor Interne [2018] ECLI:EU:C:2018:385 regarding the recognition of the status of spouse acquired in a third state and the enjoyment of freedom of movement under the Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/ EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC [2004] OJ L 158/77.

EUFam’s Policy Guidelines  813 following the example of the Regulation on property consequences of registered partnerships.39 Therefore, the last step of the scale of jurisdiction factors should point to the Member State under whose law the mandatory registration of the partnership was made in order to establish it. The silence of the proposal related to some important points such as a rule comparable to Article 10 of the Rome III Regulation or Article 9 of the Regulation on matrimonial property regimes should be reconsidered in the interests of consistency between all the European and international instruments.40

ii.  Private Divorces41 a. Assessment So-called ‘private divorces’ fall under the broad category of foreign divorces declared (or constituted) without the intervention of a judicial authority. This broad heading groups: a) divorces constituted by non-judicial public authorities; b) divorces declared by public authorities; and c) purely private divorces agreed by the parties without the intervention of an authority (or when the intervening authority does not have official functions).42 Nowadays in some Member States it is possible that non-judicial public authorities, ­­ like notaries, declare the divorce (these divorces correspond to categories a and b, above). In some cases, those notaries just give the necessary formal requirement to the common will of the parties, only declaring the divorce (for example, in France)43 or exercise judicial powers, resulting in the divorce (for example, in Spain).44 In both cases, the intervention of an authority can be seen as falling under the current concept of the court in Brussels IIa or the concept of authority in the text proposed by the Commission in its Brussels IIa Recast Proposal. There is an ongoing discussion focused on the function developed by the authority that intervenes (either declaratory or constitutive) and the impact that this might have on the scope of application of the regulation. However, the majority of the authors agree that such a differentiation is not always easy to make and that the best way to avoid confusion is for Brussels IIa to cover all cases where an official authority is involved in the divorce.45 There are also scholars who point to the use of Article 46 Brussels IIa if a marriage is terminated by a ­document formally drawn up by a notary or registered as authentic instrument.46 However, it is 39 Such an additional ground of jurisdiction might be added as Art 3(1)(c), eg: ‘under whose law the ­registered partnership was created.’ 40 It might be advisable to introduce a new article to promote consistency, eg: ‘If no court of a Member State having jurisdiction pursuant to Articles 3, 4 and 5 provides for divorce or legal separation on grounds of the spouses’ sex, jurisdiction shall lie with the courts of the Member State under whose law the marriage was concluded.’ 41 This section is attributed to A Gandia Sellens. 42 A Calvo Caravaca, J Carrascosa González, Derecho internacional privado (Comares, 2016) 343–44. 43 Report on Internationally Shared Good Practices (n 6) 7. 44 Report on Internationally Shared Good Practices (n 6) 10. See also DGRN No 114/16 N. 45 W Pintens, ‘Article 1’ in U Magnus and P Mankowski (eds), Brussels IIbis Regulation (Munich, Sellier European Law Publishers, 2012) 54. 46 K Siehr, in U Magnus and P Mankowski (eds), Brussels IIbis Regulation (Munich, Sellier European Law Publishers, 2012) 264.

814  Ilaria Viarengo and Filippo Marchetti disputed if Article 46 is applicable only to titles with enforceable content or if, when there is no content to enforce, it is enough that the contents are capable of being recognised.47 Regarding the intervention of religious authorities (without recognising imperium)48 in the divorce or purely private divorces agreed by the parties in a common document (these divorces correspond to category c, listed above), it is worth noting that purely private divorces do not exist in the EU – or at least not in the Member States participating in the Rome III Regulation – as the Advocate General stated in the recent opinion given in the Sahyouni case.49 Therefore, no change is needed at the moment in this regard in Brussels IIa, since it only covers decisions issued in the EU. Only a clarification in a recital would be advisable. Concerning substantive recognition (as opposed to formal recognition) of purely private divorces declared in third states, some Member States apply Rome III, this issue being the main question of the Sahyouni case50 now pending before the CJEU. Once the CJEU gives its ruling, a guideline containing its result could be added in the Rome III Regulation in order to clarify its scope of application. b. Recommendation Since purely private divorces are non-existent at the moment within the EU, no change is necessary in this regard in the Brussels IIa Regulation. Only a clarification in a Recital is advisable, in the sense that whenever an officially recognised authority intervenes in the divorce, it falls under the scope of application of Brussels IIa.

iii.  Universal Scope of Application51 a. Assessment Another problem within matrimonial matters relates to the personal scope of ­jurisdiction. The confusion created by Articles 6 and 7 of Brussels IIa has not been 47 Magnus (who defends the latter view), see U Magnus in U Magnus and P Mankowski (eds), Brussels IIbis Regulation (Munich, Sellier European Law Publishers, 2012) 383. 48 It is worth noting that according to Art 2(1) of Brussels IIa, ‘the term “court” shall cover all the authorities in the Member States with jurisdiction in the matters falling within the scope of this Regulation pursuant to Article 1’ and Art 2(2) of the same Regulation states ‘the term ‘judge’ shall mean the judge or an official having powers equivalent to those of a judge in the matters falling within the scope of the Regulation’. Also in this line goes Art 2(1) of the Commission’s Proposal: ‘“authority” means any judicial or administrative authority in the Member States with jurisdiction in matters falling within the scope of this Regulation’. 49 Siehr (n 46) based on the allegations of the German Government. Conclusions of the AG Henrik Saugmandsgaard Øe in Case C-372/16 Soha Sahyouni v Raja Mamisch [2017] ECLI:EU:C:2017:686. Regarding the French notarial divorce, the intervention of the notary and the need of mandatory legal advice for the parties make this kind of divorce fall under category b (list above). However, the European Commission has been notified about the broad scope of the French law regulating this kind of divorce, since it gives powers to notaries to declare divorces without checking the grounds of jurisdiction of Brussels IIa, but at the same time the law foresees their recognition under Brussels IIa (by authorising the notary to deliver the certificate on the dissolution of the marriage). See more information on conflictoflaws.net/2017/complaint-against-france-fora-violation-of-several-obligations-arising-from-the-rome-iii-and-brussels-iibis-regulations/. 50 Case C-372/16 Soha Sahyouni v Raja Mamisch [2017] ECLI:EU:C:2017:988. 51 This section is attributed to A Gandia Sellens.

EUFam’s Policy Guidelines  815 changed by the proposed merging of both provisions contained in the Commission’s Proposal. The proposed Article 652 does not improve the wording of the current Articles 6 and 7 and it is still too difficult to apply in practice. It remains unclear whether an EU national with habitual residence in a third state can file in the EU applying the domestic rules of jurisdiction.53 A better solution would be to establish a universal scope of application; meaning that if no ground of jurisdiction is given by the Regulation to any EU Member State, then there should be no residual jurisdiction in favour of national rules.54 This universal scope of the rule should be accompanied by a forum necessitatis rule in the sense that if proceedings cannot reasonably be brought or conducted or would be impossible in a third state with which the case is closely connected (following the examples of Article 7 of the Maintenance Regulation, Article 11 of the Succession Regulation or Article 11 of both new Regulations on matrimonial property regimes and property consequences of registered partnerships).55 b. Recommendation The introduction of an explicit rule clarifying the personal scope of application of Brussels IIa would be advisable. This rule could consist of a universal scope of application, as far as it is accompanied by a forum necessitatis rule in line with other EU Family Law instruments.

iv.  Party Autonomy56 a.  Assessment and Recommendation There is no provision in the Brussels IIa Regulation that makes it possible for the parties to agree on the jurisdiction over a claim for divorce, legal separation or marriage annulment.57 Indeed, the parties are unable to select a jurisdiction even from among the limited grounds available in Article 3, save to the extent that joint applications may be possible per the fourth indent of Article 3(a).

52 Art 6 of the Commission’s Proposal reads: ‘1. Where no authority of a Member State has jurisdiction pursuant to Articles 3, 4 and 5, jurisdiction shall be determined, in each Member State, by the laws of that Member State. 2. Paragraph 1 shall not apply to a respondent who: (a) is habitually resident in the territory of a Member State; or (b) is a national of a Member State, or, in the case of the United Kingdom and Ireland, has his or her “domicile” in the territory of one of the latter Member States. 3. As against a respondent who is not habitually resident in a Member State and is not either a national of a Member State or, in the case of the United Kingdom and Ireland, does not have his “domicile” within the territory of one of the latter Member States, any national of a Member State who is habitually resident within the territory of another Member State may, like the nationals of that Member State, avail himself of the rules of jurisdiction applicable in that Member State’. 53 Report on Internationally Shared Good Practices (n 4) 5. 54 In a similar vein, T Kruger and L Samyn, ‘Brussels IIbis: successes and suggested improvements’ (2016) 12 JPIL 140. 55 In this line, Report on Internationally Shared Good Practices (n 4) 6. 56 This paragraph shall be attributed to I Viarengo and L Válková. Please consider the FC Villata, L Válková, ‘Model Choice-of-Court and Choice-of-Law Clauses’ in ch 38 of this volume. 57 On this matter, see First Assessment Report (n 2) 30 ff.

816  Ilaria Viarengo and Filippo Marchetti In order to achieve a coincidence between forum and ius, a limited forum choice should be provided, which should mirror the possibilities enshrined in the Rome III Regulation.58 Alternatively, following the solutions provided in the Succession and Property Regimes Regulations, the parties may be allowed to agree that the courts of the Member State, whose law is applicable, or the law in fact applied to their divorce or legal separation or marriage annulment, shall have jurisdiction. Moreover, the proposed jurisdictional grounds on choice-of-court relating to divorce or separation or annulment should improve the consolidation among proceedings on maintenance, matrimonial property regime and parental responsibility. The jurisdiction of the designated court could be for example based on the habitual residence of either of the spouses, on the spouses’ last common habitual residence or on the nationality of one of them. They could be also entitled to designate a court which has jurisdiction to entertain p ­ roceedings concerning parental responsibility over spouses or future spouses’ child, ensuring that such jurisdiction gives a primary consideration to the child’s best interests. As regards to the moment when the conditions must be met, the proposed choiceof-court rule should opt for one of the models adopted in the other instruments eg only at the time the choice-of-court agreement is concluded (Article 5 of the Rome III Regulation) or both at the time the choice-of-court agreement is concluded and at the time the court is seised (Article 4 of the Maintenance Regulation). Moreover, the formal choice-of-court requirements should be aligned with the formal choice-of-court or on choice-of-law requirements contained in other Regulations in family matters.59 It is questionable whether the rule on the substantive validity on choice-of-court should be introduced.60 The last problematic issue concerns the question of (non-)exclusivity of choiceof-court agreements. The non-exclusivity of the choice-of-court agreement might be allowed to enlarge the existing available jurisdictional grounds or to strengthen already available jurisdictional grounds (as also regulated in Article 4(1) of the Maintenance Regulation). In the light of the foregoing, the following may be suggested: 1. Introduce a choice-of-court rule allowing the spouses to choose: (a) a court of a Member State in which one of the parties is habitually resident;61 (b) a court

58 cf MJ Escher and J Wittmann, Report on German Good Practices (EUFam’s Project, 2016) 7 (2.2.) and 13 at www.eufams.unimi.it/wp-content/uploads/2017/01/EUFAMS-German-report-on-good-practices.pdf. See also the considerations made above concerning the coincidence of forum and ius. 59 See Art 4(2) of the Maintenance Regulation, Art 7(2) of the Matrimonial Property Regime Regulation and Art 7(1) of the Rome III Regulation. 60 Neither the Maintenance Regulation, nor Matrimonial Property Regime Regulation provides for the rule on substantive validity of choice-of-court agreement. However, it may be suggested to follow the example of Brussels Ia Regulation (Art 25(1)). 61 Although Art 5(1)(a) of the Rome III Regulation provides for the possibility to designate the law of spouses’ common habitual residence, the jurisdictional ground referring to habitual residence of only one of the spouses is aligned with Art 4(1)(a) of the Maintenance Regulation and indirectly also with Art 3(1)(a) of the Brussels IIa Regulation which is in fact based on the habitual residence of one of the spouses. In the 2006 Brussels IIa Recast Proposal, which has never been adopted, it was proposed to introduce a rule on choice-of-court relating to divorce or legal separation allowing to the spouses to agree on a court which would otherwise have jurisdiction on the grounds of jurisdiction listed in Art 3. However, according to the authors, the proposed choice-of-court article in this document seems to be prima facie more comprehensive.

EUFam’s Policy Guidelines  817 of a Member State of the spouses’ last common habitual residence;62 (c) a court of a Member State corresponding to one of the spouse’s nationality;63 (d) a court of a Member State whose law is applicable or the law in fact applied, to their divorce or legal separation; or (e) a court of a Member State which has jurisdiction to entertain proceedings concerning parental responsibility over spouses’ or future spouses’ child. 2. Determine that the above-mentioned conditions must be met at the time the choice-of-court agreement is concluded or at the time the court is seised as well. 3. Align the proposed rule on choice-of-court agreement regarding exclusivity with Article 4(1) of the Maintenance Regulation by stating that the jurisdiction conferred by agreement shall be exclusive unless the spouses or future spouses have agreed otherwise. 4. Unify the possible different approaches which may be taken by the Member States courts on the substantive validity of the choice-of-court agreement, by following the current model introduced into the Brussels Ia Regulation, by specifying that a Member State court designated by the agreement shall have jurisdiction unless the agreement is null and void as to its substantive validity under its law (ie law of designated Member State court).

v.  Lis Pendens64 Provisions on lis pendens and related actions of the Brussels IIa, Maintenance Regulation and Succession Regulation follow the model established with Brussels Convention regime.65 However, the relevant area has been significantly upgraded by the CJEU interpretations, and later, accordingly altered by the Brussels Ia Regulation. Yet the Brussels IIa Recast Proposal reflects almost none of those changes and the provision remains untouched. Some change however derives out of the disconnection clauses of Article 75(2)(c) of the Proposal. Accordingly, the lis pendens and related procedure in relation to 1996 Hague Contracting States is settled. The EUFam’s valuable national case law speaks of huge number of parallel procedures, in different scenarios. Invoking lis pendens resulted in various open questions and diverging national practices. Most of them still amount to clash of a national procedural law rules with the provisions of a Regulation, which could hardly be eliminated without procedural law unification. Nevertheless, evolution accomplished in the context of Brussels Ia should not be neglected. Attitude towards parallelism of procedures in general should be advocated, with certain amendments that go even beyond that prototype model.

62 The spouses’ last common habitual residence is in line with Art 4(1)(c)(ii) of the Maintenance Regulation (the Maintenance Regulation only requires a two-year duration of the spouses’ habitual residence), this jurisdictional ground was also proposed in the 2006 Brussels IIa Recast Proposal (requiring a three-year duration for the spouses’ habitual residence). 63 See Art 5(1)(c) of the Rome III Regulation and Art 4(1)(b) of the Maintenance Regulation. 64 This section is attributed to M Župan. 65 On the case law in lis pendens matters, see FC Villata in the First Assessment Report (n 2) 55 ff.

818  Ilaria Viarengo and Filippo Marchetti a.  Assessment and Recommendation – Conduct of the Applicant As the current rule on lis pendens in the Brussels IIa Regulation (Article 19) does not sufficiently prevent a wilful delay of proceedings by one party, a special provision or recital should be added, requiring the party that first filed the suit to pursue actively the court proceeding.66 A rule to prevent such bad faith seems necessary because the CJEU did not yet issue any express interpretation on this issue. Indeed, in Case C-489/14, A v B, 6 October 2015, it dealt with the issue of the conduct of the applicant in the first proceedings, notably his lack of diligence. Nevertheless, the Court focused on other aspects of the situation to establish that the criteria for lis pendens were no longer fulfilled. Therefore, it stated that the conduct of the applicant in the first proceeding was not relevant for determining whether the jurisdiction of the court first seised was established. In divorce proceedings, a party may ‘rush to a court’ to gain the advantage of a more favourable forum, but then engage another method of alternative dispute resolution (ADR) in the case. That party misused the lis pendens rule to freeze jurisdiction, thus minimising the possibility for mediation or other type of ADR to succeed. Some national laws would give the parties the option to activate lis pendens at an early stage, regardless of ongoing ADR or regardless if the litigation would in the end take place. On the contrary, other national laws preclude this possibility. Another aspect of this problem lies with the time limits for the service of the documents instituting the proceedings, in correlation with the lis pendens. Pursuant to the general rule, a court is deemed to be seised for the purposes of the lis pendens rule when the document instituting the proceedings is lodged with the court, provided that the claimant has not subsequently failed to take the steps he was required to take to have service effected on the defendant. This rule applies whenever, according to the applicable rules of national procedural law, the document does not have to be served before being lodged with the court. Some national procedural laws afford the claimant with a period of time for service, after having lodged the document with the court. Hence the claimant can lodge the document instituting a proceeding, triggering the lis pendens mechanism and then wait for a long time. The rush to the court and passivism contribute to ineffective service of justice, burden the courts and thwart other possible alternative dispute resolution mechanisms. It would thus be advisable to question whether a common standard may be established, in order to set a minimum or maximum timeframe for party engagement. Inserting a rule with a strict time frame could potentially foil the ratio of such a rule. Namely, time limits may fall too short for some, but unnecessarily long for other Member States. Having in mind the significantly diverging length of civil proceedings throughout EU, it is recommended to reconsider whether a provision or a recital would be more appropriate. Such an amendment should prescribe that a party that has launched the proceedings is obliged to pursue with the action and participate actively within reasonable timeframe, as well as sanction for any opposite behaviour.



66 As

suggested in the Report on German Good Practices (n 58) 4 (1.3.) and 13.

EUFam’s Policy Guidelines  819 b.  Assessment and Recommendation – Perpetuatio Fori in Conjunction with Parallel Procedures Brussels IIa adheres to the continental law principle of perpetuatio fori. Once the jurisdiction is grounded at the moment the court is seised, it remains firm despite the fact that circumstances may change. The 1996 Hague Convention on the Protection of Children abandoned this principle. Since jurisdiction is set to the court of the habitual residence of a child, any movement of a child amounts to a change of jurisdiction. Lack of coordination among the Brussels IIa and the 1996 Hague Convention on the Protection of Children in this respect is most unwelcome. In event of a movement of a child from EU to a 1996 Hague Convention Contracting State the jurisdiction of an EU court which is seised may not be declined. On the other hand, Article 13 of the 1996 Hague Convention on the Protection of Children prevents any new procedure in the new habitual residence of a child. Still, once the recognition of a judgment rendered in a Member State is sought in a 1996 Hague Contracting State, such a judgment may be denied. This scenario should be avoided by abandoning the perpetuatio fori in the Brussels IIa Regulation Recast as well. c.  Assessment and Recommendation – Lis Pendens with Third States The first generation of EU civil justice regulations provided no rules with regard to the attitude towards parallel procedures in a third state. A flexible approach is welcome, to allow the courts of the Member States to take into account proceedings pending before the courts of third states. So far, no CJEU ruling indicates whether the ongoing identical or related procedure should be taken into account or tolerated by a second seised EU Member State court. National practice is diverse. Some Member States adhere to the old comity principle and under the domestic private international law rules give way to such a foreign procedure. Stay or dismissal of a proceeding is subject to conditions prescribed by national law. Some Members States follow the CJEU reasoning in Owusu, and find no legal ground in EU law to stop or decline jurisdiction. Hence, such a Member State court ignores a prior foreign third state procedure and refuses to stop or drop a pending case before it. Such diverse national practice is not welcome. Lack of clarification leads to parallelism in procedures. Judgment rendered in a Member State would in most occasions produce no effect abroad. Such a scenario hampers international cooperation, pressures procedural economy and effects with legal uncertainty. In child-related matters, it is contrary to the best interests of a child. Following the Brexit outcome, the problems related to this particular issue will increase as Article 19 Brussels IIa Regulation restricts its scope to proceedings among Member States. Solutions along the lines of Articles 33 and 34 of the Brussels Ia Regulation should serve as a model to this matter. d.  Cooperation in Relation to Lis Pendens National case law identified side inconveniences that authorities have faced with ­application of the lis pendens rule. Often, they were lacking any information either on the facts or the foreign procedural law required to establish the moment the court of

820  Ilaria Viarengo and Filippo Marchetti another Member State is seised. Similar conclusions may be drawn from recent CJEU case law in C-29/16, where the interpretation of the foreign procedural law remains decisive for lis pendens rule application. These problems have been effectuated by relevant national case law in relation to Successions Regulation as well. Namely, succession proceedings are in some Member States initiated ex officio upon establishment of death of the deceased, for example in Croatia. In many cases the authority could not determine if proceedings were also initiated in another Member State. This occurs in cases where the notary informs the parties (successors) that proceedings have been initiated, but parties remain passive. Obstacles in succession proceedings which could be removed through enhanced judicial cooperation concern the lis pendens. Hence the changes should adhere to the evolution of the lis pendens rule of the Brussels I regime and provide for a rule that obliges a court to reveal the date it is deemed to be seised. Such a rule would contribute to the smooth and efficient service of the justice within the EU. Proposal for the rule of the Brussels IIa Recast Regulation is modelled on a respective provision of Article 29 paragraph 2 of the Brussels Ia regime should prescribe that upon request by a court seised of the dispute, any other court seised shall without delay inform the former court of the date when it was seised.

vi.  Forum Necessitatis67 a. Assessment The EUFam’s survey reveals that necessity is very seldom relied upon for jurisdictional purposes in cross-border disputes concerning family relationships.68 However, to ensure access to the court, a harmonised forum necessitatis would be advisable, following the examples of Article 7 of the Maintenance Regulation, Article 11 of the Succession Regulation or Article 11 of both Regulations on property regimes. A similar forum necessitatis rule in Brussels IIa should be reconsidered for coherence among the EU family law instruments, in particular for cases in which the competent authorities are in countries that do not admit same sex marriages. It is well known, for example, that Article 13 of Rome III together with the grounds of jurisdiction provided by the Brussels IIa Regulation, can potentially lead to a denial of justice.69 b. Recommendation Following the example of the above-mentioned provisions, our proposal would be that it should be provided in the Regulation that: Where no court of a Member State has jurisdiction pursuant to other provisions of this ­Regulation, the courts of a Member State may, on an exceptional basis, hear the case if 67 This section is attributed to I Viarengo and R Espinosa Calabuig. 68 See First Assessment Report (n 2) 53 ff. 69 The Council in the adoption of the Rome III Regulation, urged that, to remedy such situations, it is necessary to provide – in the recast of the Brussels IIa Regulation – for a forum necessitatis, whereby a court different from the one that is prevented from granting a divorce can be seised (Council Document of 26 November 2010, 17046/10, JUSTCIV 214, JAI 100). In this vein see also the European Parliament ­Resolution of 15 November 2010.

EUFam’s Policy Guidelines  821 proceedings cannot reasonably be brought or conducted or would be impossible in a third State with which the dispute is closely connected. The case must have a sufficient connection with the Member State of the court seised.

B.  Parental Responsibility The changes brought about by the Brussels IIa Recast Proposal are to be welcomed. However, the EUFam’s Report on the outcomes of the online questionnaire proposes some clarifications and amendments.

i.  Scope of Application70 a. Assessment As confirmed by the national case law, the substantive scope of application of the Brussels IIa Regulation regarding parental responsibility issues does not raise particular problems. Domestic courts have in fact proved to be familiar with the list of matters addressed by Article 1 and the definitions set forth by Article 2.71 However, various issues can be touched upon: 1.



The material scope of application • Some doubts still exist in relation to protection of the property of a child. ­According to Article 1(2)(e), it amounts to administration, conservation, or disposal of his property. Closer inspection of Recital No 9 of the Regulation reveals that the i­ntention of the legislature was to provide rules with the sole scope of protecting the child. Thus, the Regulation is limited to protective measures and it applies to the designation and functions of a person or body having charge of the child’s property, representing, or assisting him. Other measures, which relate to the child’s property but do not concern his protection, are not covered by this Regulation but by the Brussels Ia Regulation.72 • With regard to measures that can be taken to ensure the effectiveness of parental responsibility rights (namely, rights of custody and rights of access), such as penalty payments or similar actions, the CJEU has already provided a qualified guidance in its Bohez v Wiertz73 ruling, by holding that such measures serve to protect a right falling within the scope of Brussels IIa Regulation, and are thus subject to its regime. However, occasional uncertainties may arise in relation to different measures that can be ordered in case of breach of other parental responsibility obligations, or that may generally have a compensatory nature, as their inclusion in the scope of said Regulation could be arguable.

70 This

section is attributed to D Danieli, C Fratea, M Župan. EUFam’s First Assessment Report (n 2) 16. v Brně, 19 November 2015, 13 Co 83/2015. 73 Case C-4/14 Christophe Bohez v Ingrid Wiertz [2015] ECLI:EU:C:2015:563. 71 See 72 KS

822  Ilaria Viarengo and Filippo Marchetti 2.

The personal scope of application • It is worth considering the absence of personal prerequisites of application in the Brussels IIa regime,74 with the consequence that the EU instrument always supersedes national rules whenever an international element (even linked to a non-EU State) exists in the given case. This legislative solution differs ­significantly from that adopted in other EU PIL instruments75 and contributes to a substantial extension of the factual situations potentially falling within the scope of application of EU rules. • As far as parental responsibility matters are concerned, this hierarchy between EU and national legal sources results from the residual ground of jurisdiction laid down in Article 14 of Brussels IIa Regulation, which allows the court of a Member State to refer to domestic laws only provided that there is no other court within the EU having jurisdiction pursuant to Articles 8–13 thereof. Notwithstanding this express provision, at times national courts have failed to preliminarily refer to Article 14 of the Regulation and directly applied their domestic PIL statutes in some cases where the habitual residence of the child was located outside the EU.76 b. Recommendation

In light of the foregoing and considering the Proposal for a Brussels IIa Recast Regulation: 1. As to the material scope of application, there is no need of amendment of Articles 1 and 2 of the Regulation. However, it could be suggested: • an integration of present Recital No 9 to better clarify the extent and the ­practical application of the provision enshrined in Article 1(2)(e); and • an additional recital to specify the extent of the Regulation’s scope with regard to ancillary measures that may be taken to ensure the effectiveness of parental responsibility rights. 2. As to the personal scope of application, the introduction of a recital that clarifies the hierarchy between the EU national legal sources even when the international element is linked to a non-EU State could be useful.

74 See Pataut, in U Magnus and P Mankowski (eds), Brussels IIbis Regulation (Munich, Sellier European Law Publishers, 2012) 162; ‘Scope of the EU Family Regulations. Parental Responsibility’ in I Viarengo and FC Villata (eds), Planning the future of cross border families: a path through coordination (Final Study, EUFams’ Project, 2017) 97–98 at www.eufams.unimi.it/wp-content/uploads/2017/12/EUFams-FinalStudy-v1.0.pdf; see also MC Baruffi, C Fratea and C Peraro, Report on Italian Good Practices (EUFam’s Project, 2016) 1 at www.eufams.unimi.it/wp-content/uploads/2017/01/EUFams_Italian-ExchangeSeminar_Report_Italian_Good_practices_eng_final3.pdf, for similar considerations made with particular regard to matrimonial matters. 75 eg Brussels Ia Regulation, which in principle requires the defendant to be domiciled in an EU Member State in order to be applied. 76 See First Assessment Report (n 2) 17.

EUFam’s Policy Guidelines  823

ii.  Hearing of the Child77 a. Assessment The analysis of the case law gathered in the EUFam’s database shows that only in a limited number of cases has the child been heard.78 However, it is not clear whether the child has not actually been heard, or the decision makes no reference to the hearing. It also reveals a trend of not hearing the child in divorces lodged by mutual consent or agreements on parental responsibility. Moreover, there are notable divergences ­regarding the minimum age requested.79 In addition, difficulties arise because Member States have diverging rules governing the hearing of the child. In particular, Member States with stricter standards regarding the hearing of the child than the Member State of origin of the decision are encouraged by the current rules to refuse recognition and enforcement if the hearing of the child does not meet their own standards.80 The Brussels IIa Recast Proposal seeks to give more weight to the children’s right to be heard and have their opinion taken in account. Article 20 sets up an obligation for a court to hear a child capable of forming his or her own views in all proceedings on custody and access, and on the return of children abducted by one of their parents, and the court must give weight to those views. It means, in line with Article 12 of the UN Children’s Rights Convention, as well as with Article 24(1) of the EU Charter, that the judge must always hear the child and only when considering the weight that must be given to the child’s views can the judge consider the child’s age and degree of maturity. Therefore, Member States will be obliged to mutually recognise the different national systems for hearing children. In the light of the foregoing: 1. It is much welcomed that the Brussels IIa Recast Proposal places more emphasis on the children’s right to be heard. However, a strict obligation to hear every child, regardless of how old the child is, is difficult to establish in practice. Although a general obligation of the courts to provide the child is with a genuine and effective opportunity to express his or her views should be highlighted, a case by case assessment is still necessary. 2. National procedural rules on how, and by whom the child is heard must not be changed (cf Recital No 23 Brussels IIa Recast Proposal). 3. Not hearing the child is no longer a ground for refusal to recognise or to enforce a decision. However, Member States with high standards as to the hearing of the child might use the ground of non-recognition of Article 38(1)(a) (public policy, considering the child’s best interest). A recital should be inserted clarifying that



77 This

section is attributed to I Viarengo. EUFam’s Database. See also First Assessment Report (n 2) 105 ff. 79 See German Report on Good Practices (n 58) 6. 80 ibid. 78 See

824  Ilaria Viarengo and Filippo Marchetti Article 38 provides relief in cases where the authorities of the Member State of origin did not respect these principles.81 4. It would be necessary to bring evidence of the impossibility of hearing the child. The current Annex IV is built in such a way that does not make it possible to indicate the reasons why the child has not been heard. In the new Annex II of the Brussels IIa Recast Proposal the impossibility to hear the child is not taken into account. It may be advisable to reformulate the Annex in order to take these elements into account and avoid difficulties in the recognition of decisions. b. Recommendation Considering the Proposal for a Brussels IIa Recast Regulation, the following may be suggested: 1. An additional recital in order that Article 38(1)(a) (violation of public policy, taking into account the child’s best interests) could provide relief in cases where the authorities of the Member State of origin did not at all respect these principles. 2. As to Article 20, that it clarifies that the authority shall provide the child with a genuine and effective opportunity to express those views freely during the proceedings, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law. Therefore, the authority shall give due weight to the child’s views in accordance with his or her age and maturity and documents its considerations in the decision. 3. As to the Certificate Annex II, it should specify whether the child was heard, and if not, giving a reason.

iii.  Prorogation of Jurisdiction82 a. Assessment In relation to Article 12, different issues may arise.83 On one hand, some uncertainties regarding how the expression ‘the jurisdiction of the courts exercising jurisdiction by virtue of Article 3 has been accepted’ must be interpreted. In particular, it should be clarified whether the lack of any express objection by the respondent is sufficient. The interpretation of the provision becomes more complicated when the proceedings continue when one of the parties is in default of appearance.

81 cf the Resolution of the GEDIP (Groupe européen de droit international privé/European Group for Private International Law) on the Commission Proposal for a Recast of the Brussels IIa Regulation proposed by the Commission/ Résolution sur la réforme proposée par la Commission du règlement Bruxelles 2bis at www.gedip-egpil.eu/, documents du Groupe. 82 This section is attributed to MC Baruffi and C Fratea. 83 On this matter, see First Assessment Report (n 2) 30 ff.

EUFam’s Policy Guidelines  825 It must be argued that the acceptance of the jurisdiction shall be, if not necessarily written, at least explicit, which implies the appearance of the parties before the court. The provision itself does not require a written agreement, but the jurisdiction has to be accepted expressly or otherwise in an unequivocal manner by the spouses and by the holders of parental responsibility. This approach is because matrimonial and parental responsibility matters, even when dealt with jointly, must be treated separately. On another hand, the amendment to the heading of the provision brought about by the Proposal for the Brussels IIa Recast is welcomed. The title, in fact, will no longer be ‘Prorogation of jurisdiction’, but ‘Choice of court for ancillary and autonomous ­proceedings’ (new Article 10). However, as the new heading shows, in the same article two separate grounds of jurisdiction coexist, which refer to two different situations. This could lead to confusion and misunderstanding, as confirmed by the number of preliminary rulings with which the CJEU has been called to interpret the interplay between present Article 12(1) and 12(3). It is also welcomed that according to the Proposal the jurisdiction must be accepted at the latest at the time the court is seised or, where the law of that Member State so provides, during those proceedings. In this way, the new provision will be in line with Article 5 of the Rome III Regulation. Finally, a better coordination between present Articles 12 and 15 should be sought to favour the concentration of proceedings. In particular, it could be useful to specify that the transfer of proceedings established in the latter provision could: • be extended to matrimonial matters; and • also take place upon request of the court of the state where the child has its habitual residence in favour of the court of the state seised of an application for divorce or legal separation of the child’s parents, or for annulment of their marriage (see below section III.B.iv.). b. Recommendation Considering the foregoing, it may be suggested: • The Recast Regulation specifies more clearly that the acceptance of jurisdiction under Article 12 cannot be inferred from a general lack of objection but requires a positive behaviour. However not this is not written, and the provision cannot be applied in default of appearance of the respondent.84 • The two grounds of jurisdiction established in Article 12 can be separated by proving two different articles: one for the ancillary proceedings, the other for the autonomous ones. • In addition to the amendments to Article 15 proposed in section III.B.iv. below, a recital should be introduced specifying that Article 15 could be used by



84 See

also Report on Italian Good Practices (n 74) para 4.

826  Ilaria Viarengo and Filippo Marchetti the court of the state of the child’s habitual residence in order to facilitate an agreement between the parties in favour of moving the proceedings before the court of the state where the separation/divorce/annulment proceedings are pending, provided that it corresponds to the best interests of the child.

iv.  Other Grounds of Jurisdiction85 a. Assessment Besides Article 12, Articles 9 and 15 contain the two other grounds of jurisdiction of the Brussels IIa Regulation that represent exceptions to general provision laid down in Article 8. The Proposal for the Brussels IIa Recast introduces major changes to neither of them. From the national case law analysed within the EUFam’s project and gathered in the EUFam’s database it can be inferred that: • Article 9 seems never to have been used.86 This can be due to the strict temporal conditions enshrined in the provision, which make the recourse to it extremely hard. • Article 15 proves to be very difficult to apply. This might be due to the circumstance that the kind and the extent of the assessment that the court of the second Member State must carry out to verify if it is better placed to hear the case in the best interests of the child are not sufficiently clear. As a result, this provision is rarely used in practice, as the decisions gathered in the EUFam’s database confirm. Even though this provision is meant to be applied in exceptional cases, a wider recourse to it could be useful to reduce the fragmentation of proceedings and to call for the judge that is better placed to hear the case. b. Recommendation Considering the foregoing: –– Article 9: rethinking the temporal conditions for its application may represent a possible solution to make it possible for the provision to play an actual and effective role; –– Article 15: • Further specify that the transfer can take place only if it corresponds to the best interests of the child, which shall be assessed in practice on a case-by-case basis; 85 This paragraph shall be attributed to MC Baruffi and C Fratea. 86 The only decision in the EUFam’s database that seems to apply Art 9 is the Italian judgment of Cass, s.u., 21 October 2009 No 22238. This decision, however, simultaneously refers to Arts 9 and 10, which have two opposite scopes of application. Moreover, from the circumstances of the case. It was possible to infer that the relocation was wrongful and therefore only Art 10 should be the relevant provision to assess the jurisdiction.

EUFam’s Policy Guidelines  827 • Clarify whether the assumptions laid down in Article 15(3), that justify the transfer of proceedings, are either provided as examples or are meant to be exhaustive; • Following the path of the 1996 Hague Convention on the Protection of Children, add to these assumptions the possibility to transfer of proceedings to a State whose authorities are seised of an application for divorce or legal separation of the child’s parents, or for annulment of their marriage, provided that an agreement between the spouses is reached (see above para ‘Prorogation of jurisdiction) and, above all, this corresponds to the best interest of the child to be ascertained in practice; • Following once again the example of the 1996 Hague Convention on the Protection of Children, in particular of its Articles 8 and 9, provide for two ­separate provisions in the Brussels IIa Recast: one for the cases where the transfer of proceedings is sought – directly or through the invitation to the parties – by the court of State where the child has its habitual residence (thus having ­jurisdiction by virtue of present Article 8); the other for the cases where the transfer of proceedings follows the request of the court of the State with which the child has a substantial connection. In the first of the two provisions, it should also be clarified that the court should make the request to transfer the proceedings only if the decision to stay has become final to avoid situations of possible parallel proceedings; • Besides considering extending its scope also to matrimonial matters to make it possiblefor same-sex married couples, who are nationals of and residing in EU Member States where their marriage is not recognised, to be granted access to a court having jurisdiction according to the Regulation; Allow the judge seised of an application of separation/divorce/annulment of marriage to transfer the proceedings to the authorities of the State where the child has its habitual residence and that would have jurisdiction according to one of the grounds of Article 3(a) of the Regulation, provided that there is the consent of the parties. For instance, this could be useful in those cases where a couple habitually residing in an EU Member State with their child decides to apply for separation/divorce/annulment before the authorities of the State of their nationality.

v.  The One-Appeal Limit for the Cases of Child Abduction87 a. Assessment As regards return proceedings, two improvements brought about by the Proposal for the Brussels IIa Recast must be underlined, in particular: • Limiting the possibilities to appeal a return decision (Article 25(4) of the Proposal).



87 This

section is attributed to C Fratea.

828  Ilaria Viarengo and Filippo Marchetti • Setting an 18-week time frame for the whole process (six-week time limit for the completion of the case file by the Central Authority in view of the return proceedings, six weeks for the first instance proceedings, six weeks for the appeal under Articles 63(1)(g) and 23(1) of the Proposal). These restrictions are particularly delicate because they affect the procedural autonomy of EU Member States. However, their introduction responds to a view of a timely restoration of the status quo ante. This is particularly true for the second one, since appeals can often lead to delays, especially in those legal orders that provide a three-instance system and/or the possibility to appeal the decision granting enforcement. It must be pointed out that the one appeal limit contained in the Proposal does not undermine the possibility of a cross-appeal within the same appeal proceedings. b. Recommendation When referring to the one appeal limit, it appears that Member States are free to establish whether the appeal shall take place before a second instance court or a supreme court, as long as this does not affect the six-week time limit within which the proceedings shall be concluded. However, it could be argued the need for the Brussels IIa Recast Regulation to clarify the nature of the only judicial review allowed (whether on the merits or limited to the correct application of the law, as happens before the supreme courts of many Member States). As a result of this one appeal limit and taking into account that the number of instances hearing the case becomes much more limited, another question is whether it would be appropriate to introduce an obligation for first instance courts to refer to the CJEU with a preliminary ruling, if necessary.

vi. Mediation88 a. Assessment The introduction of mediation into the Regulation Brussels IIa is a very positive policy which is in line with the promotion of the use of ADR mechanisms in the framework of the right of access to justice. It is not a new proposal in the EU in the field of child abduction (for instance, recourse to the European Parliament Mediator for International Parental Child Abduction has been viable as of 1987 and Directive 2008/52/EC on mediation in civil and commercial matters has boosted its implementation in the EU). However, encouraging and extending its use in this particular scope through more channels will help to improve communication between the parents. Even if the whole dispute is not solved, this approach creates the necessary basis for further cooperation between parents, and in the future would mean a huge success in cases concerning cross-border parental responsibility issues. The families will also benefit from other advantages of mediation such as confidentiality, the reduction of costs and the fact that agreements

88 This

section is attributed to C Azcárraga Monzonis.

EUFam’s Policy Guidelines  829 are more likely to be complied with voluntarily. However, mere reference is not enough; other measures must be implemented to further develop the change of culture that is still needed in order to encourage citizens to use it in practice instead of going to court, either as an out-of-court system or as court-annexed mediations. The Proposal to amend Regulation Brussels IIa states that: ‘Several substantial modifications are proposed with the aim of improving the efficiency of the return of an abducted child and the problems relating to the complexity of the “overriding mechanism” under the Regulation’. Among them, ‘the proposal would oblige Central Authorities to … promote mediation while making sure that this does not delay the proceedings’, an idea which is reflected in Article 63(1)(f). Furthermore, mediation (and in general the possibility of achieving amicable solutions by other means) is also explicitly referred to in Recital No 28 and Article 23(2) of the Proposal. The invited expert to the meeting held at the Max Planck Institute in May 2017 (the representative of the European Commission) explained that Article 23 was proposed because many Central Authorities under the Child Abduction Convention already provided a mediation framework and helped the parents (the abductor parent and the left behind) to get together on speaking terms.89 In fact, Recital No 28 of the Proposal makes reference to the assistance, where appropriate, by ‘existing networks and support structures for mediation in cross-border parental responsibility disputes’. In this field it is important to remember the work of the Hague Conference on Private International Law, which includes two relevant achievements: first, the creation of a network of Central Contact Points for International Family Mediation (the EU should encourage Member States to join this network); and second, the 2012 publication of the ‘Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction’. On the other hand, the EUFam’s survey reveals that private international law practitioners, although in favour of mediation as a soft remedy to reach a solution (parental responsibility cases involve not only legal but also emotional issues which may be tackled more conveniently in such procedures), highlight some disadvantages, such as the tense situation between the parents or the use of mediation to stall the proceedings (as it was shown in the ECtHR case, Raw and others v France, 7 March 2013, 10131/11). This is particularly true for child abductions, with a six-week period for the child return order. The Commission Proposal states repeatedly that mediation should not unduly delay the proceedings, as seen in the above articles and recital. In this regard, it might be difficult to distinguish between a mala fide behaviour and the genuine need for more time for reaching a common solution. Therefore it is extremely important to train mediators and judges properly in order for them to determine whether mediation is feasible and recommendable in the particular case because a case-by-case assessment is necessary (it can be even forbidden in cases of domestic or gender violence, or not convenient where the relationship between the parents is deteriorated substantially). Additionally, once mediation is deemed feasible and advisable, mediators and judges must establish the adequate number of sessions.



89 See

Report on Internationally Shared Good Practices (n 4) 35.

830  Ilaria Viarengo and Filippo Marchetti Finally, it is worth noting that the Proposal refers not only to mediation but also to ‘other appropriate means’. This clarification provides flexibility and allows the inclusion in this scope of other systems, provided that they do not unduly delay the achievement of solutions. In fact, no delays or even disputes would exist if mediation (or those other means) were used to prevent family problems from escalating. Mediation can be useful before the controversy has arisen, during and after, even at the enforcement stage. b. Recommendation • The Proposal should include a rule to coordinate the procedural consequences of initiating mediation during proceedings for the return of a child including issues such as the impact on deadlines or the possible influence on lis pendens rules. • Article 23(2) states that the court shall examine whether the parties are willing to engage in mediation ‘[a]s early as possible during the proceedings’ but this assessment should be done ‘from the very beginning’, possibly with the support of a mediator who would help to establish its convenience in the particular case. Furthermore, the inclusion of ‘other appropriate means’ in this provision (which only refers to mediation) like in Article 63 and Recital No 28 could be assessed to promote the achievement of amicable solutions in a more flexible manner even during judicial proceedings. • The Proposal may envisage the possibility of including mandatory elements in mediation as a stronger and more successful way to inform citizens about its existence and advantages and consequently foster the use of this ADR system in the EU. This is permitted by EU law in civil and commercial matters under Article 5(2) Directive 2008/52/EC. Among all the proposals based on the possible introduction of mandatory elements, the so-called ‘opt-out system’ is particularly interesting. This approach creates the obligation to mediate in appropriate cases with the ability to opt out in the first session with no consequences (and preferably with no costs). • In case the mandatory element is introduced, Article 38 of the Proposal should include a new ground of non-recognition based on the infringement of this rule. • The Proposal may consider the possibility to encourage or even require Member States to provide these services free of charge or at least with minimum costs. The most preferable option would be the creation of public bodies but a more realistic scenario includes the participation of private entities, whose services should be subsidised. The interests involved (above all the best interest of children) justify the financial effort this policy would require. • It may useful to add an explicit reference to electronic means to encourage mediation in cross-border cases, where the parties are usually located in different countries. The Directive 2008/52/EC does not regulate the use of new technologies but Recital 9 enables Member States to develop this possibility in domestic legislations.

EUFam’s Policy Guidelines  831

vii.  Reference to the 1996 Hague Convention on the Protection of Children90 a. Assessment The combined application of the Brussels IIa Regulation and the 1996 Hague Convention on the Protection of Children in cross-border disputes regarding parental responsibility has been raising less critical issues since all EU Member States have become contracting parties to the latter. Nonetheless, the interplay between the Regulation as regards the issues on jurisdiction and the Convention as regards the issues on applicable law remains a problematic aspect for national courts. The 1996 Hague Convention on the Protection of Children is based on the principle of coincidence between forum and ius, pursuant to the general rule set forth by Article 15 thereof. The Convention further provides for conflict-of-laws rules in relation to specific situations concerning parental responsibility rights. In practice, in most cases the lex fori – the law of the child’s habitual residence – applies, with the consequence that the authorities of Contracting States refer to the law with which they are most familiar. The coordination between the 1996 Hague Convention on the Protection of Children and Brussels IIa Regulation, however, is regulated only on a general basis (Articles 61–62 of the latter instrument) and the same regulatory approach has been taken also in the Recast Proposal. Indeed, according to the new Article 75, where the child concerned has his or her habitual residence in the territory of a Member State the Regulation shall apply. Article 75(2) establishes a few exceptions: • Where the parties have agreed upon the jurisdiction of an authority in a State Party to the 1996 Hague Convention on the Protection of Children in which the Regulation does not apply, Article 10 of that Convention shall apply (prorogation of jurisdiction). • With respect to the transfer of jurisdiction between an authority in a Member State and an authority in a State Party to the 1996 Hague Convention on the Protection of Children in which the Regulation does not apply, Articles 8 and 9 of that Convention shall apply (transfer of jurisdiction). • Regarding proceedings pending before an authority of a State Party to the 1996 Hague Convention on the Protection of Children in which the Regulation does not apply at the time when an authority of a Member State is seised of concurrent proceedings, Article 13 of the Convention shall apply. Moreover, Article 75(3) thereof provides that the reference contained in Article 15(1) of the Convention to ‘the provisions of [its] Chapter II’ (Jurisdiction) shall be read as ‘the provisions of Section 2 of Chapter II’ of the Regulation (rules on jurisdiction in matters of parental responsibility), thus clarifying a further level of coordination between the two international instruments. This kind of specification is considered necessary to overcome the wording of Article 15 of the Convention according to which the authorities of



90 This

section is attributed to MC Baruffi and D Danieli.

832  Ilaria Viarengo and Filippo Marchetti Contracting States shall apply their own law when exercising their jurisdiction under the Convention.91 Article 75(3) of the Proposal reiterates the primacy of the Regulation over the Convention as to the system of jurisdiction in relation to parental responsibility matters, in addition to the specific provisions laid down in Article 75(1) of the Recast (and with the only exceptions in Article 75(2)). b. Recommendation With a view to offering a sound guidance for the combined application of the Brussels IIa Regulation and the 1996 Hague Convention on the Protection of Children in cross-border disputes, it could be proposed to introduce a Recital in the Recast Proposal that contains an express reference to the latter instrument with regard to the determination of the law applicable to parental responsibility matters, even though this PIL aspect is not governed by the Regulation. This interpretative tool may in fact prove useful to practitioners and judges when facing this further level of fragmentation of proceedings and could supplement the general rules on the relations between the two instruments provided in Article 75 of the Recast.

IV.  Rome III Regulation A.  Same-Sex Marriage, Registered Partnerships92 As for the Brussels IIa Regulation, there is a need for greater clarity as to whether the Regulation will address marriage in the broadest sense, including same-sex marriages and registered partnerships. According to Recital 10 of Rome III the substantive scope and enacting terms of this Regulation should be consistent with the Brussels IIa Regulation. Therefore, with regard to the scope of application of the Regulation it would be advisable to pursue the same solution envisaged for the Brussels II.93

B.  Party Autonomy and Informed Choice94 i.  Assessment and Recommendation According to Recital 18 of the Rome III Regulation a choice-of-law agreement by the spouses should be an informed choice. However, the EUFam’s survey shows that the

91 See Report on Internationally Shared Good Practices (n 4) 27. 92 This section is attributed to M Escher and J Wittmann. 93 This might encompass a new recital clarifying the inclusion of same-sex marriage and registered partnerships in the Regulation (eg ‘This regulation is applicable to all marriages and partnerships, regardless of the spouses’ sex’) and the addition of a new ground of jurisdiction in Art 8 (eg Art 8(e)): ‘under whose law the registered partnership was created’). 94 This section is attributed to I Viarengo and R Espinosa Calabuig.

EUFam’s Policy Guidelines  833 necessary counselling of the parties is not ensured in all Member States.95 Therefore, further efforts should be made to raise awareness in this regard in the Member States. The issue of ensuring an informed consent is even more relevant in prenuptial agreements, because the choice of law might have effects decades after it was concluded. The question is whether additional safeguards should be set at the European level or whether such a task must be left to the discretion of Member States. In any case, judicial training should also cover this aspect.

C.  Objective Criteria: Flexibility96 i.  Assessment and Recommendation During the EUFam’s national seminars, Article 8(b) and its ‘more than one-year of residence’ condition has been criticised as being too rigid. Some advocate a more flexible approach relying on a closest connection test. In cases where the spouses were habitually resident in a state for more than 20 or 30 years, it seems inadequate to deny the application of the law of that state just because one spouse left that state for slightly more than one year. Therefore, a more flexible rule, which allows the courts to alternatively apply the law of the country with which the matter is most closely connected, should be adopted.97

V.  Maintenance Regulation A.  Party Autonomy98 i. Assessment The Maintenance Regulation allows parties to agree on the competent court (Article 4). However, the choice of court is totally excluded for disputes relating to a maintenance obligation towards a child under the age of 18 (Article 4(3)). This restriction aims to protect the minor as the weaker party. However, its rigid application may, in practice, lead to the opposite result. Actually, the chosen forum may prove to be more favourable

95 So do the findings in the Report on the German Good Practices (n 58) 7 (2.1.); a possible addition to Art 8(b) might be: ‘where the spouses were last habitually resident, provided that the period of residence did not end more than 1 year before the court was seised or lasted longer than five years with the spouses still retaining a close connection to the State, in so far as one of the spouses still resides in that State at the time the court is seised’. 96 This section is attributed to M Escher, J Wittmann. 97 In this regard see the findings in the Report on German Good Practices (n 58) 7 (2.3.); a possible addition to Art 8(b) might be: ‘where the spouses were last habitually resident, provided that the period of residence did not end more than 1 year before the court was seised or lasted longer than five years with the spouses still retaining a close connection to the State, in so far as one of the spouses still resides in that State at the time the court is seised’. 98 This section is attributed to: I Viarengo and L Válková. See also FC Villata, L Válková, ‘Model Choice-ofCourt and Choice-of-Law Clauses’ in ch 38 of this volume.

834  Ilaria Viarengo and Filippo Marchetti to the child’s interests. Providing for some flexibility, the need to protect the child could be better ensured. The court should be allowed to weigh in whether its decision will be in the ‘best interest’ of the child and if substantial connection between the designated court and the child exists. The judicial discretion as provided for in Article 12 of the Brussels IIa Regulation on the evaluation of the fulfilment of the conditions should be allowed.

ii. Recommendation It is recommended to allow the application of Article 4 also to a dispute relating to a maintenance obligation towards a child under the age of 18, where the child has a substantial connection with that Member State (in particular because one of the holders of parental responsibility is habitually resident in that Member State, or the child is a national of that Member State) and the jurisdiction of the court is in the best interests of the child.

B.  Role of Public Authorities99 i.  Assessment and Recommendation In the German Exchange Seminar, the scenario was discussed that in practice maintenance claims are regularly enforced by state authorities.100 The authorities receive the claims through cessio legis from the original creditor and proceed against the maintenance debtor in an action for recourse. Hereby the question arises whether public authorities can rely on the jurisdiction of the court at the creditor’s habitual residence as provided in Article 38(b) of the Maintenance Regulation or whether Article 3(b) of the Regulation is a special protective provision only the creditor himself can rely on. If the latter is the case, problematic situations could occur in which different courts have jurisdiction for the maintenance claims between two parties depending on whether these claims have already been assigned to a third party or not (split jurisdiction). While there is broad consent that it would be adequate to allow a public authority the reference to Article 3(b) of the Maintenance Regulation, many hold the view that the Regulation – de lege lata – does not permit an interpretation in this sense. They refer to Recital 14 and Article 64(1), according to which the term ‘creditor’ explicitly includes public authorities, but only for the purpose of an application for the recognition or enforcement of a decision, not regarding Article 38(b) of the Regulation. Therefore, a revision of the Maintenance Regulation is proposed to ensure that public authorities can also rely on the jurisdiction of the court at the creditor’s habitual residence as provided in Article 3(b).101

99 This section is attributed to M Escher and J Wittmann. 100 Report on German Good Practices (n 58) 8 (3.1.). 101 It might be advisable to include a new Recital, eg: ‘Public bodies can rely on Article 3(b) for the purpose of enforcing maintenance claims having been assigned from the original creditor.’

EUFam’s Policy Guidelines  835

VI.  Succession Regulation102 A. Introduction Not surprisingly, mostly due to the (relatively) short time that the Regulation has been applicable, the identification of bad or best practices – or even of common patterns – in the application of the Succession Regulation supporting the need for policy recommendations has proven complex. Still, some cases from the jurisdictions falling under the scope of the EUFam’s project – most of them publicly available in its database103 – ­highlight difficulties met in practice, which are apparently linked to the lack of awareness or proper understanding of the new rules. Remarkably, this phenomenon occurs even in situations where difficulties had been foreseen by the lawmaker and a solution provided for, either as a suggestion in the preamble or as a rule in the operative text. A combined effort of the Commission and of the Member States to bring the Regulation closer to the authorities dealing with succession may help avoid the uncertainties and their likely outcome – the heterogeneous application of the rules.104 To this aim, we would recommend the development of a practice guide drafted by the Commission and addressed to the relevant stakeholders105 in the Member States, which is specifically designed to acquaint them to the Regulation and highlight unique ­difficulties, some of which will be detailed hereinafter.

B.  Scope of Application i.  Personal Scope a.  Assessment: Citizens of Member States not bound by the Regulation The Succession Regulation combines provisions on jurisdiction, on applicable law, on recognition or, acceptance, enforceability and enforcement of decisions, authentic instruments and court settlements, as well as European Certificate of Successions. According to Recitals 81 and 82, neither the United Kingdom, Ireland nor Denmark were committed to adopting the Regulation, leaving these states not bound by it or

102 This section is attributed to M Requejo Isidro and P Siaplaouras. 103 www.eufams.unimi.it/2017/09/26/eufams-database-26-09-17/ accessed on 11 October 2017. 104 Already and within the same Member State jurisdiction; on how to identify the habitual residence compare Kammergericht Berlin, 26 April 2016, 1 AR 8/16; OLG HH, 16 November 2016, 2 W 85/16 (Hanseatisches Oberlandesgericht Hamburg). On the identification of a choice of the applicable law, see the Spanish decisions issued by the Spanish Directorate-General of Registers and Notaries: Dirección General de los Registros y el Notariado, Resolución No 7026/2016, 15 June 2016, source: Aranzadi Insignis, RJ/2016/4990; Dirección General de los Registros y el Notariado, Resolución No 7817/2016, 4 July 2016, source: Aranzadi Insignis, RJ/2016/4032; Dirección General de los Registros y el Notariado, Resolución No 4556/2017, 10 April 2017, source: Aranzadi Insignis, RJ/2017/1590. 105 By which we mean sophisticated actors such as the authorities dealing with successions, notaries or registrars. In October 2017 the Commission published a guide entitled Cross-border successions. A citizen’s guide intended to explain the basics of the Regulation to the general public, thus unsuitable for the purposes alluded to in the text.

836  Ilaria Viarengo and Filippo Marchetti subject to its application. What this entails for the scope of application needs to be correctly understood: the UK nationality of the deceased does not prevent the application of the Regulation by the authority of his or her last habitual residence, located in one of the bound Member States, in order to determine the applicable law.106 Along the same lines, the UK nationality of an applicant for a European Certificate has no impact on the scope of the Succession Regulation, provided the court dealing with the application has jurisdiction under Articles 4, 7, 10 or 11 of the Regulation.107 b. Recommendation A clarification in this regard may help dispel the doubts which could arise in practice. A comparison can be made with other EU Regulations of ‘asymmetric’ application, such as the Maintenance Regulation or regulations concluded by way of the enhanced ­cooperation procedure. This may enable the national authorities to more easily identify the situation and resort to the experience they may have already consolidated.

ii.  Temporal Scope and Transitional Provisions a.  Assessment: Understanding Article 83(2) and (3) The Succession Regulation applies to the succession of persons who die on or after 17 August 2015. Some transitional provisions ease the transition from the former Member States’ private international law rules and the, sometimes extremely different, European ones, helping to ensure the validity of succession-related legal acts granted before that date. According to Article 83(2), if the deceased had chosen the law applicable to his succession prior to 17 August 2015, that choice shall be valid if it meets the conditions laid down in Chapter III. The choice may also be valid if it is made in accordance with the rules of private international law that were in force at the time the choice was made, in the state in which the deceased had his habitual residence or in any of the states whose nationality he possessed. Article 83(3) provides for a similar rule in cases where a disposition of property upon death was made prior to 17 August 2015. In other words, it should be admissible and valid in substantive terms and as regards form if it meets the conditions laid down in Chapter III, or if it is admissible and valid in accordance with the rules of private international law which were in force at the time the disposition was made, in the state in which the deceased had his habitual residence, in any of the states whose nationality he possessed or in the Member State of the authority dealing with the succession.

106 The question arose before the Dirección General de los Registros y el Notariado, Resolución No 7026/2016, 15 June 2016, source: Aranzadi Insignis, RJ/2016/4990. 107 Regional Court Yambol decision 177, 30 March 2016; District Court Yambol, 4 May 2016, BGS20160504.

EUFam’s Policy Guidelines  837 Paragraphs 2 and 3 of Article 83 confirm the Regulation’s preference for succession planning, an axis of the system which here gets stretched to its limit. Indeed, the effects of Article 83 paragraphs 2 and 3 go far beyond what would be required to respect the intentions of a deceased person who granted a will or chose the applicable law before 17 August 2015. Not only will a choice of law or a disposition mortis causa be effective at the time of granting according to the rules of private international law in force, and will remain valid, but they can also be confirmed if they were void, even when such nullity was or could have been known by the deceased. This is because the Regulation does not discriminate according to the reasonable or unreasonable, legitimate or illegitimate nature of the deceased’s expectations. In other words, choices of law and dispositions of property upon death become independent from the legal system operative at the time and place where they were granted; thus, they may be declared lawful under private international law rules alien thereto. Their validity, in short, is possible ‘by accident’, unrelated to the regime the authorities of each Member State were bound to respect at the time of granting. This is striking, particularly in relation to the choice of law, because before the Regulation, choice of law was only acknowledged in a few Member States. As a result of Article 83(2), the Member States’ authorities dealing with a will or a disposition mortis causa established before 17 August 2015 must in any case inquire about a possible choice of law even though such choice would have been unthinkable under the law applicable at the time of granting. Should such a choice really exist, in practice it would presumably have been made implicitly and thus will be difficult to spot, due to the lack of experience of the competent authorities in many Member States. Besides, the authorities must check the validity of the choice – and of a potential disposition of property upon death – in light of private international law rules with which (with the exception of Article 83(3), last sentence) they are most likely not acquainted. One may conclude that, all in all, the application of Articles 83(2) and (3) place a heavy burden on the national authorities dealing with a given succession. b.  Assessment: Understanding Article 83(4) According to Article 83(4), if a disposition of property upon death was made at any time prior to 17 August 2015, in accordance with the law that the deceased could have chosen in relation to the Regulation, that law shall be deemed to have been chosen as the law applicable to the succession. The provision is meant both to ease the process of identifying the applicable law and to protect the trust of the individuals. The text envisages the case of a will granted under a private international law system, governed by the connecting factor ‘nationality’, and not allowing for the choice of law. The testator of a will, according to his or her national law coinciding with his or her habitual residence, would have been unaware of the fact that, should he or she die on or after 17 August 2015, a change of the habitual residence between making the will and the time of death could, as a result of Article 21 of the Regulation, affect the validity of the disposition. To avoid such an outcome, Article 83(4) creates the fiction that in such situations national law has been chosen and extends it to the whole succession, hence providing a pragmatic solution.

838  Ilaria Viarengo and Filippo Marchetti c. Recommendation It is easy to predict that frequent resort to Article 83 will be made presently and in the immediate future.108 Raising awareness of its existence as well as of its precise consequences and internal logic is of the essence. In particular, it is important to draw attention to paragraph 4 of the provision: Member States’ authorities dealing with a disposition of property upon death granted prior to 17 August 2015, in a country where the connecting factor used to be (or still is, in the case of a third state or a Member State not bound by the Regulation) the nationality need look no further for the applicable law if such disposition is valid under the deceased’s national law.

C. Jurisdiction i.  Habitual residence a. Assessment In general, the courts of the Member States in which the deceased had his habitual residence at the time of death shall have jurisdiction to rule on the succession as a whole. To help determine the deceased’s habitual residence, some hints are given in Recital 23. Here, distinctive features related to the subject matter of the Regulation are incorporated, and it is recommended that ‘The habitual residence thus determined [should] reveal a close and stable connection with the State concerned taking into account the specific aims of this Regulation’. In certain cases – such as border commuters or where the deceased had gone to live abroad to work, sometimes for a long time, but had maintained a close and stable connection with his State of origin – determining the deceased’s habitual residence may prove complex.109 Support is given here by Recital 24. b. Recommendation The notion of habitual residence is certainly an elusive one. The guidelines in Recitals 23 and 24 are not binding, but they certainly assist the authorities engaged in reaching an outcome that matches the intention of the Regulation. Hence, any recommendation on this matter should stress that, as a matter of principle, resorting to the interpretation of the CJEU as developed for other Regulations, in particular for the Brussels IIa Regulation, is neither needed nor advisable.

108 Dirección General de los Registros y el Notariado, Resolución No 7026/2016, 15 June 2016, source: Aranzadi Insignis, RJ/2016/4990; Dirección General de los Registros y el Notariado, Resolución No 7817/2016, 4 July 2016, source: Aranzadi Insignis, RJ/2016/4032; Dirección General de los Registros y el Notariado, Resolución No 4556/2017, 10 April 2017, source: Aranzadi Insignis, RJ/2017/1590. 109 Kammergericht Berlin, 26 April 2016, 1 AR 8/16.

EUFam’s Policy Guidelines  839

ii.  Issuance of a national certificate of succession a. Assessment Article 62(3) of the Regulation stipulates that the European Certificate of Succession does not replace national certificates of succession. An interesting question which arose in a German case related to whether jurisdiction of the courts to issue national certificates of succession is now regulated by the Regulation, thereby replacing national rules on the matter. The question has been referred to the CJEU.110

D.  Applicable Law i.  Identification of a Choice of Law a. Assessment The Succession Regulation enables citizens to organise their succession in advance by choosing the law applicable to their succession – with only the choice of the law of his or her nationality being permitted – expressly in a declaration in the form of a disposition of property upon death. Alternatively, the choice shall be demonstrated by the terms of such a disposition. Identifying such a choice may prove difficult for the authorities in Member States where no choice was allowed prior to the Regulation. Identifying a choice may also be difficult for those systems more lenient as to what factors may be used to conclude which law the deceased intended to choose. Recital 39 provides for narrow support in this regard, stating: ‘A choice of law could be regarded as demonstrated by a disposition of property upon death where, for instance, the deceased had referred in his disposition to specific provisions of the law of the State of his nationality or where he had otherwise mentioned that law.’ b. Recommendation In view of the scant assistance given by the Regulation on this point, guidance on what indications can be regarded as a proof of the choice of law (and which ones should conversely be discarded) would be most welcome. More specifically, practices in force in Member States where the choice of law was allowed prior to the Regulation should be analysed to determine whether they ought to be rejected or upheld under the new regime. The drafting of the disposition of property upon death following the legal structure mandated by a specific legal order, or the use of a Member State language, may be accepted as they constitute elements of the written text, whereas factors external to the text are more controversial. This would include the place where the disposition was granted, the nationality of the notary, or oral declarations made by the deceased.



110 Case

C-20/17 Vincent Pierre Oberle [2018] ECLI:EU:C:2018:485 (pending).

840  Ilaria Viarengo and Filippo Marchetti In addition, new emerging trends call for further assessment, for instance, whether the appointment of the spouse as sole heir by a British citizen amounts to choosing English law, because it is a common feature of English wills.111

ii.  Scope of Applicable law a.  Assessment: Delimitation – Property and Family Law v Succession Law The cases brought before the CJEU, either pending or already decided upon, show that one area where legal practice faces challenges with respect to the Succession Regulation is the delimitation of the scope of the law governing succession. The problems here are the delimitation of national property and family law. One example is whether a Member State can refuse to recognise the effects on immovable property on its own soil that are a result of a legal institution provided by the law governing succession and whether said law also regulates claims which under national law are considered to be part of family law. In the first case,112 the referring court asked the CJEU whether Germany was able not to recognise the material effects of a legatum per vindicationem upon property rights on immovable property on its soil, a legal institution provided for by Polish law, which was also the law chosen to govern succession under the Regulation. German law recognises only legacy by damnation, not legacy by vindication. The Court negated the possibility of such refusal. The EUFam’s database shows that practical issues related to immovable property also arise in national case law. In a Croatian judgment, the notary did not apply the Regulation to establish jurisdiction nor to ascertain the law governing succession, but directly applied national law to register the new owner in the land registry, even though the deceased person had his habitual residence in Germany.113 As to the second case submitted to the CJEU,114 the referring court has asked the CJEU whether the Regulation’s scope includes matters of increasing the share of the estate of one spouse after the death of the other spouse in cases of intestacy. The referring court also asks, in case the CJEU rules that the scope of Regulation does not include said issues, whether these amendments to the spouse’s share should be indicated in the European Certificate of Succession or not. The CJEU has not issued a judgment yet.

111 Dirección General de los Registros y el Notariado, Resolución No 7026/2016, 15 June 2016, source: Aranzadi Insignis, RJ/2016/4990; Dirección General de los Registros y el Notariado, Resolución No 7817/2016, 4 July 2016, source: Aranzadi Insignis, RJ/2016/4032; Dirección General de los Registros y el Notariado, Resolución No 4556/2017, 10 April 2017, source: Aranzadi Insignis, RJ/2017/1590. 112 Case C-218/16 Kubicka [2017] ECLI:EU:C:2017:755. 113 Općinski sud u Vukovaru, 17 February 2016, O-2543/15, CRF20160217. 114 Case C-558/16 Doris Margret Lisette Mahnkopf [2018] ECLI:EU:C:2018:138 (pending).

EUFam’s Policy Guidelines  841 b. Recommendations The issues presented before the CJEU reflect highly practical questions of cross-border successions. Practitioners, lawyers and judges should be aware that these issues have been raised and that the CJEU has either already ruled on them or is expected to rule on them. Moreover, as both the judgments on the Kubicka case and the Croatian judgment show, the handling of immovable property may present a source of friction. The effects of the law governing succession as a whole, and in particular those aspects dealing with immovable property, must also be clarified. It is therefore advisable, if a practice guide is published, to highlight these issues.

842

40 Model Protocol for Coordination Among Judges1 EUFAM’S WORKING GROUP ‘JUDICIAL COMMITTEE’2

I. Introduction Judicial Authorities3 in the European Union frequently deal with cross-border cases in family matters and apply EC/EU regulations4 that set out: 1. 2. 3. 4.

rules determining which court is competent to deal with the case; rules determining the law applicable to each claim; rules simplifying the recognition and enforcement of judgments issued in another Member State; a procedure to settle child abduction cases.

1 Disclaimer: This publication has been produced with the financial support of the ‘Civil Justice Programme’ of the European Commission. The contents of this document are the result of a scientific research project elaborated for educational and general information purposes. Therefore, they have not been tested in legal practice, and they are not intended to provide specific legal guidance in the application of the EC/EU Regulations and of any procedural or substantial rule applicable to proceedings. The views, information, or opinions expressed herein are those of the authors and do not reflect the official opinion or position of the European Commission. The authors and the European Commission do not guarantee the accuracy, relevance, timeliness, completeness or the results from the use of the guidelines, lists and model form herein. Any action taken upon the information on this document is strictly at user’s own risk. Both the Commission and the authors of this document disclaim any responsibility and/or liability for any use of the guidelines, lists and model form herein in legal practice. 2 Partners of the project: Italian Family Lawyers Association: C Cortese, A Todini; Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law: A Gandía Sellens; University of Osijek: P Poretti; University of Valencia: L Carballo Piñeiro, R Espinosa Calabuig, G Palao Moreno; University of Heidelberg: M Escher, J Wittmann; University of Milan: E D’Alessandro, F Marchetti, J Re, L Sandrini, I Viarengo, L Válková, FC Villata; University of Verona: F Ragno. Associate partners of the project: Spanish Family Lawyers Association: JL Ferrer-Sama Pérez, P Tamborero Font, M del Pilar Tintoré Garriga, D Muñoz Mañé; Croatian Judicial Academy: T Kokić; Italian Judicial Academy: F Fiorillo, U Giacomelli, B Magarò, M Velletti. External contributors: D Bacchetta, M La Manna. Edited by L Sandrini. 3 For the purposes of this Protocol, the terms ‘judicial authority’, ‘judge’ and ‘court’ should be interpreted as referring to judicial authorities/judges/courts or other authorities/officials having equivalent powers in the matters falling within the scope of the Regulations at stake. 4 ie Brussels IIa Regulation, Rome III Regulation and Succession Regulation. Matrimonial Property Regimes Regulation and Regulation on the Property Consequences of Registered Partnerships became applicable from 29 January 2019.

844  EUFam’s Working Group ‘Judicial Committee’ In order to correctly apply those rules, a judge dealing with a cross-border dispute will often need information on substantive as well as procedural rules of another Member State. In many cases the necessary information may be easily found by consulting the information sheets on Union, international and national law and procedures which are available at the European e-Justice Portal5 of the European Judicial Network in civil and commercial matters (EJN-civil)6 as well as through other channels, such as those provided under the European Convention on Information on Foreign Law.7 However, sometimes more specific information will be necessary, in the light of the circumstances of the dispute at hand. In these cases, the judge before which proceedings are pending may need, eg: • information about any parallel or connected proceedings pending in another Member State; • detailed guidance as to the proper interpretation or application of substantive and procedural rules of another Member State connected to the dispute at stake; • copies of decisions rendered in other Member States or transcripts or documents related to foreign proceedings; • information about the factual grounds of the case. Such information may often be crucial for a smoother as well as swifter outcome of the proceedings, especially in the furtherance of the twofold goal of avoiding duplicate proceedings, on the one hand, and ensuring an effective protection of the rights of the parties to the dispute, on the other. Most of the time, the requested information and documents may be provided by the parties of the dispute themselves. With reference to this occurrence, lawyers and legal counselors play a very significant role and should therefore be conscious of their responsibility in the proper functioning of the judicial cooperation at the EU level. In some cases, however, parties may be reluctant to cooperate, or not in the position to support the information they provided with sufficient documentary evidence, or they may even not have access to the relevant documents. In these cases, there is but one solution to collect the required information: one will want to address the judge or judicial authority of another Member State, thereby establishing a form of judicial communication aiming at the mutual exchange of relevant information. This Protocol is intended to provide some guidance about how to get in contact with a judge or judicial authority in another Member State either directly or through the EJN-civil or other channels. 

5 EJN-civil section, e-justice.europa.eu/ejncivil. 6 The European Judicial Network in civil and commercial matters was set up to facilitate judicial and legal cooperation between Member States (Council Decision No 2001/470/EC of 28 May 2001 amended by Decision No 568/2009/EC of the European Parliament and of the Council of 18 June 2009 establishing a European Judicial Network in civil and commercial matters). 7 European Convention on Information on Foreign Law, London, 7 June 1968. More information on this instrument are available on the Council of Europe website: www.coe.int/en/web/conventions/full-list/-/ conventions/treaty/062.

Model Protocol for Coordination Among Judges  845 The present Model Protocol for Coordination among Judges provides a set of Guidelines on the direct communication between judges. The Guidelines were drafted bearing in mind the previous work of the Hague Conference on Private International Law (HCCH) and the ‘Principles for Direct Judicial Communications in specific cases including commonly accepted safeguards’ especially.8 The latter are the outcome of the long-lasting commitment of the Permanent Bureau on the subject matter of good practice in communication between judges, and were drafted thanks to a direct contribution by the European Commission. Accordingly, in the drafting process of the Guidelines, the paramount importance of the principles, which have performed so well, was acknowledged. Therefore, coherence with the Principles was pursued, and the occurrence of any discrepancy whatsoever between the Principles and the Guidelines was carefully avoided. Notwithstanding that, some adjustments were needed by virtue of the significant level of integration within the European judicial space. The EJN-civil was set up to that very end, ie to provide practical assistance in the implementation of the provisions for civil judicial cooperation in EU treaties and other instruments. Accordingly, the Guidelines make any judge requiring some practical assistance aware of the possibility to approach his or her national EJN-civil contact point(s).9 Aside from that, the possibility to resort to a local Member of the International Hague Network of Judges (IHNJ)10 is also clearly stated in the Guidelines. The drafters clearly encouraged direct contact between judges, even independently from the cooperation of the EJN-civil contact point(s) and the local member of the IHNJ. To that end, they point out the accessibility of the relevant information to identify for each Member State the court competent to hear a specific case in the European e-Justice Portal.11 Furthermore, following a common practice in the domain of judicial operation in the EU, the drafters proposed a model form (Annex II), to be used when contacting a judge in another Member State. Such a form was thought of as a useful tool to overcome language issues. Unlike the Hague Principles, these Guidelines adopt a more flexible approach with reference to oral communication as well, though reference to the Common European Framework of Reference for Languages (CEFR)12 in order to identify the level of understanding is always recommended. Such an approach could be adopted by virtue of the regional dimension of the Project, which, solving the inconvenience of the time difference that justifies a preference for written communication, allows to rely on oral communication instead. As for the need to implement a judicial coordination all the while respecting procedural rules of the Member States involved, the Guidelines are compatible with previous instruments. 8 See the brochure ‘Direct Judicial Communications’, 2013, available in French, English, Portuguese, Russian and Spanish on the HCCH website: www.hcch.net/en/publications-and-studies/details4/?pid=6024. 9 See Guideline No VII. 10 On the International Hague Network of Judges, see the brochure ‘Direct Judicial Communications’ (above n 6) 8. For the list of the local Members of the IHNJ see Guideline No VIII. 11 See Guideline No VI. 12 More information is available on the website of the Council of Europe: www.coe.int/en/web/ common-european-framework-reference-languages/.

846  EUFam’s Working Group ‘Judicial Committee’ Even more so, the Guidelines make sure to comply with the ‘commonly accepted safeguards’13 previously identified by the Permanent Bureau of the Hague Conference on Private International Law in order to comply with the requirements of fair trial. 

Though the value of direct judicial communication in cross-border family cases is commonly accepted, some studies performed by the Hague Conference on Private International Law show that there is concern as to the proper legal basis for the implementation of this specific cooperation model. However, the issue is not addressed in the Protocol since in the EU legal order coordination among judges falls within the general obligation to apply EU regulations in family matters properly, ie it descends from the binding character of the regulations and their direct applicability in the Member States under Article 288 TFEU. This, of course, is without prejudice of the domestic procedural rules of each Member State. On the other hand, as far as the EU normative framework is concerned, it seems more relevant to identify the hypotheses in which a mutual exchange of information between judges may be useful. Though quite a few provisions in EU regulations may benefit from a mutual exchange of information or some judicial coordination, only Article 15 in Brussels IIa Regulation14 expressly mentions direct judicial cooperation. For the time being, judges lack a specific instrument making them aware of the hypotheses in which direct cooperation with a colleague in another Member State is likely to facilitate the settlement of the dispute. In order to fill this gap, the Protocol only partially borrowed the solutions provided by the Hague Principles. The latter have, as a matter of fact, a more restricted scope, being almost entirely related to the 1980 Child Abduction Convention. Quite the opposite, EU regulations in family matters address a wide range of matters, such as divorce, custody of children, maintenance obligations, couple’s property regimes and succession. Accordingly, the relevant regulations were analysed, in order to identify the provisions benefitting form a form of judicial communication. With reference to such provisions, the issues susceptible of being the object of a mutual exchange were subsequently identified. The outcome of the enquiry is to be found in Annex I, which certainly is the most relevant contribution to the development of coordination among judges in the whole Protocol. Table A lists the single provisions in each Regulation that may benefit from a form of judicial coordination as well as the specific issues that may need to be the object of a communication in order for the relevant provisions to be correctly applied. Some examples, either drawn from the ECJ’s case law or made up against national case law, are provided. 13 See the brochure ‘Direct Judicial Communications’ (above n 6) 13. 14 In matters of parental responsibility, under Art 15 of the Brussels IIa Regulation, the court having jurisdiction may transfer a case to a court of another Member State if this court is better placed to hear the case. For the purposes of that Article, according to its para 6, the Courts shall cooperate, either directly or through the central authorities designated pursuant to Art 53 of the Brussels IIa Regulation.

Model Protocol for Coordination Among Judges  847 Table B, on the other hand, provides an issue-oriented list, whereby the criterion resorted to is the specific matter addressed (eg: exercising jurisdiction, lis pendens, provisional measures …). Both lists are to be thought of as open-ended.

II.  Implementing Judicial Cooperation in the EU by Way of Exchange of Information: Guidelines for Coordination Among Judges A.  General Principles that should be Followed in Implementing Coordination i.  Coordination Among Judges Member States’ judges should cooperate in an international family dispute by exchanging information in order to facilitate coordination among proceedings in different Member States and a coherent outcome of the dispute. The judge needing the information should be responsible to initiate the coordination process by getting in touch with the judge or the judicial authority of the other Member State. Coordination may take place at any stage of the dispute, including interim proceedings, main proceedings, proceedings for a declaration of enforceability, enforcement proceedings and at any instance of each proceeding. Where appropriate, for example in order to avoid duplication of proceedings, coordination may also take place between the judge seised in one Member State and courts in another Member State even if there is not (or the seised judge is not aware of) any pending proceedings involving the same matter at that time in that state. For the purpose of coordinating proceedings, judges may communicate among themselves by availing themselves of the assistance of the European Judicial Network (EJN) or through other channels that are deemed to be appropriate. Whatever the mechanism of communication, communication should respect the procedural legal framework of each of the involved judges. In considering whether and how the coordination with another Member State judge should take place, the judge should consider speed, efficiency and cost-effectiveness. In particular, before starting the coordination process, the judge should be satisfied that the necessary information cannot be made available by parties to the proceedings or acquired through the information tools provided by the EJN in civil and commercial matters on the e-Justice Portal,15 or through other mechanisms of information available under domestic law and procedure that, in light of the circumstances of the actual case, might result quicker.

15 Information about Member States’ substantive and procedural law as well as on the practical application and implementation of EU civil justice instruments is available on the European e-Justice Portal e-justice. europa.eu/ejncivil.

848  EUFam’s Working Group ‘Judicial Committee’

ii.  Compliance with National Substantive and Procedural Law In engaging in coordination, each involved judge shall act in accordance with the law of their own jurisdiction. Each judge may ask for information from another Member State judge and answer a request for information from another Member State judge, to the extent that such exchange of information complies with the procedural and substantive rules applicable to each of the proceedings. In particular, the exchange of information and documents must neither affect the applicable substantive and procedural rules as to the burden of proof and pleading, nor prejudice the independence and impartiality of the judge. In exchanging information, judges shall use any means of communication, including electronic, which is accepted under the procedural rules of both Member States concerned. Insofar as this is permitted by their respective internal rules, personnel other than judges in each court may communicate fully to each other in order to establish appropriate arrangements for communication.

iii.  Rights of the Parties Parties should be notified in advance of the intention of engaging in coordination, and of the purposes of it. Where appropriate, the judges should obtain the consent of the parties before exchanging information. Where appropriate, the parties and their representatives should be entitled to participate in person during the communication between judges. A copy, transcript or record of any communication accepted by each court should be filed as a part of the record of the proceedings and made available to all the parties and their representatives.

iv.  Data Protection Personal data that is obtained, processed or transmitted to further coordination between judges shall be adequate, relevant and not excessive in relation to the purpose for which they were obtained, processed or transmitted, and shall be used only for that purpose.

v.  Taking of Evidence Where information or documents are intended for use as evidence in judicial proceedings, the requesting judge should indicate that clearly in the request. In such cases, the judges involved should considered whether it could be appropriate to transmit and execute the request according to the procedures provided by Regulation (EC) 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters.16 16 The standard forms to be used for the transmission and execution of requests for the performance of taking of evidence are available on European e-Justice Portal e-justice.europa.eu/ejncivil.

Model Protocol for Coordination Among Judges  849

B.  Available Channels for the Establishment of Coordination: How to Make Contact with a Judge in Another Member State i.  Identifying the Competent Authority in Another Member State In order to identify the other Member State court or judge with which to engage in cooperation – with regard to both a specific case and general information about that state’s law or procedures – the judge should request the parties to provide information or to integrate the information already submitted To the same purpose, the judge may look at the information made available by the European Judicial Network-EJN on the e-Justice Portal,17 or use any other mechanism of information available under domestic law and procedure.

ii.  Identifying the Competent Authority in Another Member State with the Assistance of the National Contact Points of the European Judicial Network (EJN-NCP) If, despite the request made to the parties according to GL and the search for information through the e-Justice Portal or other mechanisms available under the domestic legal system, it is not possible to identify the court or judge to which the request for coordination/information should be addressed, the judge may request the assistance of their national EJN contact point (EJN-NCP). The EJN-NCP may be approached via the EJN-civil section of the European e-Justice Portal18 or directly, whenever EJN-NCP’s contact details are otherwise available. The first difficulty that arises when engaging in court-to-court cooperation is finding out to which judge in the other Member State address the communication. This difficulty may often be overcome by asking to the parties to be more cooperative, or with the information available on the e-Justice Portal. Whenever that does not prove helpful, the judge may ask for the assistance of the EJN-NCP of his or her Member State. The EJN-NCP may help the judge seeking cooperation understand how to acquire the necessary information or identify the judge in the other Member State to whom the communication should be addressed. If that is not possible through the information available on the e-Justice Portal, the EJN-NCP may get in contact with the EJN-NCP (or with the appropriate authority) of the other Member State in order to get the contact details of the judge or court in that jurisdiction to whom the communication should be addressed. Ascertain the identity of the interlocutor in the other Member State before any communication takes place is crucial, given the sensitiveness of the information that will be exchanged. It is highly recommended to avail of the assistance of the EJN-NCP when in spite of the submission of the parties and the use of other mechanisms of information there are doubts as to the correct identification of the other Member State court/judge to which address the communication. 17 Information useful to identify for each Member State the court competent to hear a specific case are provided at the web page e-justice.europa.eu/content_jurisdiction-85-en.do?init=true. 18 That can be easily done by filling the form at the page e-justice.europa.eu/contactPoint.do.

850  EUFam’s Working Group ‘Judicial Committee’

iii.  Identifying the Competent Authority in Another Member State with the Assistance of the Local Member of the International Hague Network of Judges (IHNJ) Where appropriate, the identification of the other Member State court or judge competent to engage in cooperation – with regard to both a specific case and general information about that Member State’s law or procedures – should be carried out with the assistance of the local member of the International Hague Network of Judges (IHNJ). The list of the local members of the IHNJ is available on the Hague Conference on Private International Law website (www.hcch.net/) at the page www.hcch.net/en/ instruments/conventions/specialised-sections/child-abduction. Particularly with regard to cases involving children (eg controversies on parental responsibility, requests for Measures of Protection, child abduction cases), the International Hague Network of Judges (IHNJ) could be an alternative to the EJN. The IHNJ is a worldwide network of judges established under the auspices of the Hague Conference on Private International Law. The vast majority of the EU Member States have designated at least one judge as IHNJ Member. The responsibilities of the IHNJ local Members include facilitating the communication between the judges seised with the specific case, with the aim to promote the proper application and implementation of the Hague Conventions and other international instruments in child protection matters, both nationally and internationally.

iv.  Information that should be Communicated to the EJN-NCP or to the IHNJ Local Member with the Request for Assistance In the request to the EJN-NCP or to the IHNJ local Member, the judge asking for assistance in making contact with the competent judge in another Member State should: i. Identify themselves and the proceedings in relation to which assistance is requested. ii. Briefly describe the case, the reason why they are seeking cooperation from a judge in that particular Member State, and which kind of information they need to obtain. iii. Include any detail that could be useful in order to identify the competent court in the other Member State, as for example information about proceedings pending or decision issued in the Member State that are related to the request for cooperation. iv. Specify in which language(s) they are able to communicate, and/or whether they may avail themselves of translation services into other languages. v. Specify preferences as to means of communication. vi. In urgent cases, briefly explain the reason why the cooperation should to be implemented immediately. Any proceedings concerning a child should be deemed urgent, in particular where the return of an abducted child is at issue. The judge seeking cooperation shall provide the EJN-NCP/IHNJ local Member with all the relevant information about the case. Personal details, either of the parties or of other subjects involved in the case, that are not necessary to the implementation of the cooperation should be omitted.

Model Protocol for Coordination Among Judges  851

v.  Means and Language of Communication between the Judge and the EJN-NCP/IHNJ Local Member The judge and the EJN-NCP/IHNJ local member communicate in their own state language. In their communications, the judge and the EJN-NCP/IHNJ local member may use all the means of communications accepted under the procedural rules of the Member States concerned. If the request for assistance is made orally, it should later be confirmed in writing. Any communication by electronic means, which provides a durable record, should be considered equivalent to ‘writing’. A copy of the request of assistance, or a record or official transcript of it, should be filed as part of the record in the proceedings, and made available to the parties to the proceedings. The same should be done with regard to any subsequent communication between the judge and the EJN-NCP IHNJ local member containing information that might be relevant to the proceedings. The possibility for the judge to request assistance using their own state language is a valuable advantage of availing of the cooperation of the EJN-NCP/IHNJ local member. The assistance of the EJN-NCP/IHNJ local member is not limited to forwarding the request for coordination to the colleague EJN-NCP/IHNJ local member in the other Member State. They may suggest which information should be asked, given the circumstances of the actual case, and in general facilitate coordination among judges in every possible way. The judge and EJN-NCP/IHNJ local member should communicate employing the swiftest possible means of communication available under their national law. Since the very beginning of the coordination process, ensuring transparency for the parties and their representatives has been fundamental. For that reason a copy (or the official transcript or record) of request of assistance, as well as for any subsequent communication that might be relevant to the proceedings, should be part of the record in the proceedings.

C.  How to Establish a Common Methodological Ground for Communication i.  Initiating the Contact When making contact with a judge in another Member State, the initiating judge should: i. Identify themself and the court where they are sitting. ii. Briefly describe the case, the reason why they are seeking cooperation from a judge in that particular Member State, and which kind of information they need to obtain. iii. Specifying any particular reason for urgency where appropriate. iv. Specify whether the parties have been notified of the exchange of information taking place and/or whether they have consented to it. v. Propose arrangements for subsequent contacts. vi. List the documents attached to the communication, if any.

852  EUFam’s Working Group ‘Judicial Committee’ The initial communication should be in writing in the original language of the requesting judge and accompanied with a translation in the official language of the receiving judge or, whenever that is not possible, in one of the other official languages of the EU. When the language to use in the direct communication has been previously indicated by the EJN-NCP/IHNJ local member, the initial communication should be sent in that language, but the judge should consider, in light of their knowledge of that language, whether it could be appropriate to attach also a copy of the communication in their original language. A copy of the initial communication in the language of the proceedings should be filed as part of the record in the proceedings, and made available to the parties. Sending a copy of the communication in the original language of the requesting judges may be helpful as the receiving judges may avail themselves of a translator if necessary in order to clarify the contents of the request.

ii.  Acknowledgement of Receipt by the Receiving Judge The judge that has received the request for information should send, without delay, to the requesting judge an acknowledgment of receipt in writing. Together with the acknowledgement of receipt, the judge should also communicate: i. Which method and language, among those that have been suggested, may be agreed for subsequent communications. ii. Which further data are needed, if any, to consider the request of information. iii. Particularly when the request specify that the information are urgently required, the time by which the requested information will be available. The receiving judge should transmit with the acknowledgement of receipt all the requested information that they have at their disposal. A copy of the acknowledgment of receipt in the language of the proceedings should be filed as part of the record in the proceedings, and made available to the parties. The receiving judge should send to the requesting judge an acknowledgment of receipt immediately, possibly by the end of the first working day following the receipt of the initial communication. At this very initial stage of cooperation, reaching an agreement upon methods and language of communication is essential, in order to facilitate further communication. The receiving judge should immediately ask for any further clarification or detail they need about the case. Nothing should prevent the responding judge from communicating together with the acknowledgement of receipt all the information they have at their disposal.

iii.  Methods and Language of Communication Methods and language of communication should be to the satisfaction of both judges. After the initial contact, further communications should be carried out using the agreed method and language of communication, unless otherwise agreed by the concerned judges.

Model Protocol for Coordination Among Judges  853

iv.  Written Communication Written communication by e-mail should be preferred whenever possible as it provides an immediate and reliable record of the communication, besides facilitating flexibility in scheduling cooperation and swift contact. Where the language agreed for purposes of written communication is not the mother language of the judge, they should consider, in the light of their knowledge of the chosen language, to including a version of the message in their mother language. A copy of any written communication in the language of the proceedings should be filed as part of the record in the proceedings, and made available to the parties.

v.  Oral Communication Oral communication should be used where judges involved share a very good command of a language, corresponding to CEFR level C2. Oral exchange of information should later be confirmed in writing or recorded; if the language agreed upon by the judges for their communication is not the official language of the proceedings, a copy of the written confirmation or a transcript of the communication translated in the official language of the proceedings should be filed as a part of the record in the proceedings, and made available to the parties. In accordance with the rules of procedure applicable in each court, the parties and their representative should be allowed to assist with oral communication whenever it is required in order to fully respect the rights of the defence. Where the parties and/or their representative are admitted to assist to oral communication and the language of communication agreed by the judges is not the official language of the proceedings, interpretation services should be provided.

vi.  Transmission of Documents The transmission of documents may be carried out by any appropriate means, including electronic, which are accepted under the procedural rules of each the Member States concerned, provided that the content of the document received is true and faithful to that of the document transmitted and that all information contained is easily legible. The judge that received documents should, without delay, send the judge who transmitted the documents an acknowledgment of receipt.

Annex I Tables A and B below aim to identify the circumstances in which it could be useful i. To seek information from the court of another Member State about: • the law and/or procedures of another Member State; • the actual status of proceedings pending in another Member State; • the decision(s) rendered in another Member State.

854  EUFam’s Working Group ‘Judicial Committee’ ii. To acquire documents or acts filed as a part of the record in proceedings pending or that took place in another Member State. iii. To ask for the cooperation of another Member State’s court or judge in order to ascertain factual circumstances in relation to persons or assets that are located in that Member State. Table A lists the single provision of each regulation; Table B provides an issue-oriented list. Both the lists are meant to be merely exemplificative. In particular they are not intended to exclude that: • it could be useful to seek information or acquire elements from the court of another Member State when applying rules and articles that are not listed in the tables; • it is always necessary and appropriate to seek information or acquire elements from the court of another Member State in applying rules and articles that are not listed in the tables; in many cases the information and documents may be provided by the parties of the proceedings or may be acquired through other channels, eg the European Judicial Network website Moreover, both the requesting and the requested judge should evaluate, according to the respective domestic procedural and substantive rules, what information/documents may be requested and transmitted and to which extent or by which means it is appropriate to seek and assist in ascertaining factual circumstances in relation to an actual case. Table A (The Articles in relation to which the need for coordination/exchange of information may occur more often are framed in bold) Council Regulation (EC) 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (Brussels IIA) Article Article 7 Residual jurisdiction (Divorce, legal separation and marriage annulment) Article 10 Jurisdiction in cases of child abduction

Information that could be requested and circumstances under which it may be needed Whether the law of the Member State that issued a judgment on a legal separation provides for the conversion of legal separation in divorce.

In order to verify whether one of the conditions listed in Article 10(2)(b) points (iii) and (iv) is met: –– Whether a case before the court in the Member State where the child was habitually resident immediately before the wrongful removal or retention has been closed pursuant to Article 11(7). –– Whether a judgment on custody that does not entail the return of the child has been issued by the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention. (continued)

Model Protocol for Coordination Among Judges  855 Table A  (Continued) Council Regulation (EC) 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (Brussels IIA) Information that could be requested and circumstances under which it may be needed

Article Article 11

Paragraph (4)

Return of the child

–– Which kind of arrangements can be made to secure the protection of the child after his or her return. –– How long does it take to put in place adequate measures to secure the protection of the child after their return. –– Which protective measures are already in place or when can they be requested. Paragraph (5) If the person who requested the return order is residing in another Contracting State, whether their audition may be arranged in that state, by use of communications technology, such as videoconferences and teleconferences. Paragraph (6) –– Which court in the state where the child was residing before the abduction is competent according to the law of that state. –– Whether the competent court in the state where the child was residing before the abduction has received the copy of the non-return order and of all the relevant documents. Paragraph (7) –– Whether the custody case has been closed because the parties failed to make submission within the time limit. –– Whether the custody case has been dealt with and what the decision implies with regard to the child return. –– Whether it is the case to proceed to the child’s audition in the state where they have been abducted and/or retained by use of communications technology, such as videoconferences and teleconferences. ___ Case law: CJEU Case C-491/10: This case was about a child abduction. The child was unlawfully retained in Germany by the mother. The child was supposed to live in Spain with the father, following the provisionally awarded rights of custody to the father. Finally, the Spanish courts awarded a final judgment, granting the sole rights of custody to the father. The father sought enforcement in Germany. The mother opposed the lack of input from the child in the proceedings. However, since the opportunity to be heard was granted by the Spanish courts, there was no ground to oppose the return of the child. The Spanish court fixed dates for hearing from the abducted child and her mother in the court. The mother of the child suggested a video conference, but this was rejected by the Spanish court. (continued)

856  EUFam’s Working Group ‘Judicial Committee’ Table A  (Continued) Council Regulation (EC) 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (Brussels IIA) Information that could be requested and circumstances under which it may be needed

Article Article 12 Prorogation of jurisdiction Article 13 Jurisdiction based on the child’s presence

Article 14 Residual jurisdiction (parental responsibility) Article 15 Transfer to a court better placed to hear the case

Whether the jurisdiction of the chosen court has ceased because the judgment on divorce, legal separation, marriage annulment or a judgment on parental responsibility has become final or the proceedings are otherwise ended. In order to verify that no court of a Member State has jurisdiction pursuant to Arts 8 and 12: If there is a choice of court in favour of another Member State court, whether the court chosen has jurisdiction to settle the disputed matrimonial matters, especially with regard to the conditions required by Article 12(2). In order to verify that no court of a Member State has jurisdiction pursuant to Arts 8–13: If there is a choice of court in favour of another Member State court, whether the court chosen has jurisdiction to settle the dispute in matrimonial matters, especially with regard to the conditions as required by Article 12(2). –– Finding which court in the other Member State would be competent to deal with the case. –– Verifying with the other Member State court whether a transfer of jurisdiction is appropriate. –– Assessing which option is better, depending on the circumstances of the case: either invite the parties to introduce a request before the court better placed or request that the better placed court assume jurisdiction. ___ Example: Party A and Party B are living in different Member States, each of them with one of the couple’s children. Both start proceedings to get sole parental responsibility over the children at their residence country, the latter having jurisdiction only over the child habitually resident in its territory. In the light of the best interests of the children, both Member State courts agree on a transfer of jurisdiction. ___ (continued)

Model Protocol for Coordination Among Judges  857 Table A  (Continued) Council Regulation (EC) 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (Brussels IIA) Information that could be requested and circumstances under which it may be needed

Article Case law:

CJEU Case C-428/15: A British national, in the light of her medical and family history, is subject to a ‘pre-birth assessment’ by the child protection authorities. The competent authorities decided that once the child is born, he should be placed with a foster family. In light of this decision, the mother (British national) moves to Ireland. But the Irish Child and Family Agency, being aware of the situation, brought a claim in Ireland for placing the child in care; finally, that placement in foster care was ordered as a provisional measure. The Irish Agency further made an application to the Irish High Court requesting the transfer of the case to the High Court of Justice of England and Wales. The Irish High Court authorised the Agency to make an application to the High Court of Justice of England and Wales to assume jurisdiction in relation to the case at issue. Article 19

–– Whether proceedings have been initiated in another Member State court.

Lis pendens and dependent actions

–– Whether the two pending proceedings involve the same cause of action. –– When the other Member State court has been seised according to Articleicle 16. –– What the estimated time for establishing jurisdiction is. ___ Case law: CJEU Case C-296/10: In this case, substantive proceedings were going on in Germany and, at the same time, proceedings directed to obtaining provisional measures were ongoing in Spain. The ECJ ruled that a lis pendens situation can only be possible when the different sets of proceedings are directed to obtaining a judgment capable of recognition. The CJEU also made clear that the second-seised court should make efforts to obtain information on a potential lis pendens situation with the firstseised court, however, that enquiry should take a reasonable period of time and after its expiry, the second-seised court should decide on how to proceed with the available information.

Article 20 Provisional, including protective, measures

Information that may be useful to the judge that may not have jurisdiction on the merits –– Whether equivalent or different provisional measures have already been requested or issued in the Member State whose courts are competent as to the merits of the same action. –– The reason why provisional measures have been denied in the state whose courts are competent as to the merits of the same action. –– Whether the proceedings on the merits are already pending and at what instance. (continued)

858  EUFam’s Working Group ‘Judicial Committee’ Table A  (Continued) Council Regulation (EC) 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (Brussels IIA) Information that could be requested and circumstances under which it may be needed

Article

–– Which kind of provisional measures are available in the Member States whose courts are competent as to the merits. –– Any information that may be useful to assess a prima facie case. –– Any information useful to assess whether there is an urgent need for a protective measure. Information that may be useful to the judge having jurisdiction on the merits –– Whether provisional measures have already been requested or issued in the Member State where the measures sought should be enforced by the judge competent as to the merits. –– The reason why provisional measures have been denied in the state of execution. –– Whether the enforcement in the state of execution may produce the same effects that the measures would produce in the state of origin. –– Any information that may be useful to assess a prima facie case. –– Any information useful to assess whether there is an urgent need for protective measures. ___ Case law: CJUE Case C-256/09: A Spanish-German couple, with habitual residence in Spain, had two children. After giving birth, the German mother planned to leave Spain and move to Germany, due to the poor relationship with her husband. She did so, taking with her one child. The Spanish father asked the Spanish courts as a provisional measure to require the return of the child to Spain. The Spanish courts issued this preliminary measure, but the CJUE confirmed that there is no cross-border enforcement of provisional measures. This is an aspect that the Commission has modified in its Proposal. Article 23

Litt. (b) and (d)

Grounds of non-recognition for judgments relating to parental responsibility

If it is not apparent from the decision that the child and/or the person claiming the decision infringes their parental responsibility, whether they have been heard (or why not) and whether there are records available of the auditions.

Article 27

–– Whether an appeal from the judgment has been lodged.

Stay of [recognition] proceedings

–– How long will it take the appellate court to reach a decision.

(continued)

Model Protocol for Coordination Among Judges  859 Table A  (Continued) Council Regulation (EC) 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (Brussels IIA) Information that could be requested and circumstances under which it may be needed

Article Article 35

–– Whether an appeal from the judgment has been lodged.

Stay of proceedings [for a declaration of enforceability]

–– What the time limit to lodge an appeal is in the state of origin.

Article 48

Clarifications as to the judgment delivered by the courts of the Member State having jurisdiction as to the substance of the matter, in order to ensure that the practical arrangements for organising the exercise of rights of access hat will be taken by the court of the Member State of enforcement respect the essential elements of that judgment.

Practical arrangements for the exercise of rights of access

–– Whether it could be appropriate to specify the time limit within which the appeal is to be lodged.

Council Regulation (EC) 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations Information that could be requested and circumstances in which they may be needed

Article Article 4

Whenever a court, other than the chosen court, is seised and its jurisdiction Choice of court is contested because of the choice of court agreement, the court seised may need information on the contents and interpretation of the domestic rules of jurisdiction of the Member State of the chosen court in order to assess whether the requirements provided by paragraph 1 (c)(i) are met. ____ Example: X, who is a citizen of a non-EU country, residing in Finland, seises a Finnish court claiming for divorce and maintenance from Y, who is also a citizen of the same third country and resides there. Y contests the jurisdiction of the Finnish court, claiming that Italian courts have exclusive jurisdiction as to maintenance in force of a choice of court agreement stipulated by the parties years before. X submits that the agreement is invalid according to Article 4 of the Maintenance Regulation, since none of the requirements provided for by that article are met. According to Y Italian courts had jurisdiction to settle their dispute in matrimonial matters at the time the choice of court agreement was concluded: at that time there was no court of a Member State having jurisdiction pursuant to Articles 3, 4 and 5 of Brussels IIa Regulation, (continued)

860  EUFam’s Working Group ‘Judicial Committee’ Table A  (Continued) Council Regulation (EC) 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations Article

Information that could be requested and circumstances in which they may be needed neither the parties were resident in a Member State, and according to Y Italian courts’ jurisdiction to settle their dispute in matrimonial matters could be validly grounded on Italian domestic provisions in light of Article 7 of the Brussels IIa Regulation. The parties disagree on the correct interpretation of the Italian domestic rules on jurisdiction, but neither of them offer conclusive arguments. The Finnish judge has to understand the correct interpretation of the Italian provision on jurisdiction in order to decide whether the choice of court is valid according to Article 4 of Maintenance Regulation.

Article 6 Subsidiary jurisdiction Article 7 Forum necessitatis Article 8 Limit on proceedings

The ground on which the court of another Member State has founded its jurisdiction, according its own law, with regard to proceedings concerning the status of a person or parental responsibility, with the purpose to assess whether no court of a Member State has jurisdiction pursuant to Article 3 (c) and (d). Whether court in a Member State has jurisdiction pursuant to Articles 3–6, especially under Article 3(c) and (d), and Article 4(1)(c)(i) [in connection with Article 7 of Brussels IIa Regulation, ie whenever such jurisdiction may be founded on national criteria –– Information about the actual residence of the creditor in the state of origin of the decision. –– Whether proceedings to modify a previous decision or to have a new decision are pending in the state of the previous decision. –– Whether the competent authority in the state where the previous decision had been issued and the maintenance creditor is still residing would refuse to, has refused to, or cannot exercise jurisdiction to modify that decision or give a new decision [prima facie, without any prejudice on the future assessment of jurisdiction by the same court]. –– Whether the competent authority in the state of origin has refused to modify the decision or give a new decision.

Article 12 Lis pendens

–– Whether proceedings have been initiated before another Member State court. –– Whether the two proceedings pending involve the same cause of action. –– When the other Member State court has been seised according to Article 9. –– What the estimated time for establishing jurisdiction is. –– Whether, under its domestic procedure rules, the court first seised may schedule the proceedings so that the decision on jurisdiction can be anticipated. (continued)

Model Protocol for Coordination Among Judges  861 Table A  (Continued) Council Regulation (EC) 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations Article Article 13 Related actions

Information that could be requested and circumstances in which they may be needed –– Whether proceedings on a related action are pending in the other Member State. –– When the other Member State court has been seised, according to Article 9. –– Whether the proceedings pending in the other Member State involve related actions. –– Whether the proceedings on related action are pending in first instance. –– Whether the court first seised has already assessed jurisdiction as to the claim brought before it. –– Whether the court first seised would deem to be competent on the related action brought before the court second seised. –– Whether the law of the Member State where the relation action is pending permits consolidation of the proceedings.

Article 14 Provisional, including protective, measures

Information that may be useful to the judge other than the judge having jurisdiction on the merits –– Whether equivalent or different provisional measures have already been requested or issued in the Member State whose courts are competent as to the merits of the same action. –– The reason why provisional measures have been denied in the state whose courts are competent as to the merits of the same action. –– Whether the proceedings on the merits are already pending and at what instance. –– Which kind of provisional measures are available in the Member State whose courts are competent as to the merits. –– Any information that may be useful to assess a prima facie case. –– Any information useful to assess whether there is an urgent need for a protective measure. Information that may be useful to the judge with jurisdiction on the merits –– Whether provisional measures have already been requested or issued in the Member State where the measures sought should be enforced by the judge competent as to the merits. –– The reason why provisional measures have been denied in the state of execution. –– Whether the enforcement in the state of execution may produce the same effects that the measures would produce in the state of origin. –– Any information that may be useful to assess a prima facie case. –– Any information useful to assess whether there is an urgent need for protective measures. (continued)

862  EUFam’s Working Group ‘Judicial Committee’ Table A  (Continued) Council Regulation (EC) 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations Article Article 21 Refusal or suspension of enforcement(*)

Information that could be requested and circumstances in which they may be needed –– Whether the right to enforce the decision is extinguished by effect of prescription or the limitation of action under the law of the Member State of origin. –– Whether or how the limitation period may be interrupted. –– Whether the competent court of the Member State of origin has been seised of an application for a review of the decision of the court of origin pursuant to Article 19. –– Whether the enforceability of that decision is suspended in the Member State of origin. (*) This provision applies to decisions on maintenance given in a Member State bound by the 2007 Hague Maintenance Protocol on the law applicable to maintenance obligations.

Article 25

–– Whether an appeal from the judgment has been lodged.

Staying of recognition proceedings

–– Whether the enforceability of the decision is suspended in the Member State of origin by reason of appeal.

Article 35

–– Whether the enforceability of the decision is suspended in the Member State of origin by reason of appeal.

Staying of proceedings(*)

(*) For a declaration of enforceability.

Regulation (EU) 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession Article Article 6 Declining of jurisdiction in the event of a choice of law Article 7 Jurisdiction in the event of a choice of law

Information that could be requested and circumstances in which they may be needed Exchange of information with a court in the Member State of the designated applicable law, in order to verify whether the court better placed to rule on the succession is the one which has been seised or the one in the Member State of the chosen law. Whether the court previously seised has declined jurisdiction in the same case pursuant to Article 6.

(continued)

Model Protocol for Coordination Among Judges  863 Table A  (Continued) Regulation (EU) 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession Article Article 10 Subsidiary jurisdiction Article 11 Forum necessitatis

Article 17 Lis pendens

Information that could be requested and circumstances in which they may be needed Whenever the deceased’s assets are located in two or more Member States, in applying Article 10(2) the court seised may exchange information with the courts of the other Members States in order to know whether they are properly exercising jurisdiction to rule on the succession as a whole according to Article 10(1). If the courts of two or more Member States are seised on the grounds of jurisdiction provided by Article 11, there is a lis pendens situation that can be dealt with under Article 17. However an exchange of information between the two courts might be useful in order to ascertain which of those Member states is more closely connected with the case and would be the more appropriate forum for the case. –– Whether proceedings have been initiated before another Member State court. –– Whether the two proceedings pending involve the same cause of action. –– When the other Member State court has been seised according to Article 14. –– What the estimated time for establishing jurisdiction is. –– Whether, under its domestic procedural rules, the court first seised may schedule the proceedings so that the decision on jurisdiction can be expected.

Article 18

–– Whether proceedings on a related action is pending in the other Member State. Related actions –– When the other Member State court has been seised, according to Article 14. –– Whether the proceedings pending in the other Member State involves a related action. –– Whether the proceedings on the related action is pending in first instance. –– Whether the court first seised has already assessed jurisdiction as to the claim brought before it. –– Whether the court first seised would be deemed competent on the related action brought before the court second seised. –– Whether the law of the Member State where the relation action is ­pending permits the consolidation of the proceedings. (continued)

864  EUFam’s Working Group ‘Judicial Committee’ Table A  (Continued) Regulation (EU) 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession Article Article 19 Provisional, including protective, measures

Information that could be requested and circumstances in which they may be needed Information that may be useful to the judge other than the judge having jurisdiction on the merits –– Whether equivalent or different provisional measures have already been requested or issued in the Member State whose courts are competent as to the merits of the same action. –– The reason why provisional measures have been denied in the state whose courts are competent as to the merits of the same action. –– Whether the proceedings on the merits are already pending and at what instance. –– Which kind of provisional measures are available in the Member State whose courts are competent as to the merits. –– Any information that may be useful to assess a prima facie case. –– Any information useful to assess whether there is an urgent need for a protective measure. Information that may be useful to the judge having jurisdiction on the merits –– Whether provisional measures have already been requested or issued in the Member State where the measures sought should be enforced by the judge competent as to the merits. –– The reason why provisional measures have been denied in the state of execution. –– Whether the enforcement in the state of execution may produce the same effects that the measures would produce in the state of origin. –– Any information that may be useful to assess a prima facie case. –– Any information useful to determine whether there is an urgent need for protective measures.

Article 42

–– Whether an appeal of the judgment has been lodged.

Staying of recognition proceedings

–– How long will it take the appellate court to reach a decision.

Article 53

–– Whether the enforceability of the decision is suspended in the Member State of origin by reason of appeal.

Staying of proceedings(*)

(*) For a declaration of enforceability

(continued)

Model Protocol for Coordination Among Judges  865 Table A  (Continued) Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes Article Article 6 Jurisdiction in other cases

Information that could be requested and circumstances in which they may be needed –– Whether there are any proceedings pending before the court of a Member State in matters of the succession of a spouse (pursuant to Succession Regulation) or for divorce, legal separation or marriage annulment (pursuant to Brussels IIa Regulation). –– Whether the claim brought before the chosen court may be deemed arising in connection with the succession proceedings or with the proceedings for divorce, legal separation or marriage annulment.

Article 7

In order to ascertain whether the case is covered by Article 6.

Choice of court –– Whether proceedings are pending before the court of a Member State in matters of the succession of a spouse (pursuant to Succession Regulation) or for divorce, legal separation or marriage annulment (pursuant to Brussels IIa Regulation). –– Whether the claim brought before the chosen court may be deemed as arising in connection with the succession proceedings or with the proceedings for divorce, legal separation or marriage annulment. Article 8 Jurisdiction based on the appearance of the defendant

As Article 8 excludes the possibility of ‘tacit prorogation’ in cases covered by Articles 4 and 5(1). –– Whether there are any proceedings pending before the court of a Member State in matters of the succession of a spouse (pursuant to Succession Regulation) or for divorce, legal separation or marriage annulment (pursuant to Brussels IIa Regulation). –– Whether the claim brought before the chosen court may be deemed arising in connection with the succession proceedings or with the proceedings for divorce, legal separation or marriage annulment.

Article 9 Alternative jurisdiction Article 10 Subsidiary jurisdiction Article 11 Forum necessitatis

Whether the court(s) with jurisdiction according to Articles 4, or 5, or 7 or 8 decided to decline. –– Whenever it is unclear whether the courts of another Member State have jurisdiction pursuant to Articles 4–8, any information useful to help ascertain that. –– Whether a court in another Member State declined pursuant to Article 9. –– Whenever it is doubtful whether the courts of another Member State have jurisdiction pursuant to Articles 4–8 and 10, any information useful to help ascertain that. –– Whether a court in another Member State declined pursuant to Article 9. (continued)

866  EUFam’s Working Group ‘Judicial Committee’ Table A  (Continued) Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes Article Article 17 Lis pendens

Information that could be requested and circumstances in which they may be needed –– Whether proceedings have been initiated before another Member State court. –– Whether the two pending proceedings involve the same cause of action. –– When the other Member State court has been seised according to Article 14. –– What the estimated time for establishing jurisdiction is. –– Whether, under its domestic procedure rules, the court first seised may schedule the proceedings so that the decision on jurisdiction can be expected.

Article 18 Related actions

–– Whether proceedings on a related action are pending in another Member State. –– When the other Member State court has been seised, according to Article 14. –– Whether the proceedings pending in the other Member State involve related actions. –– Whether the proceedings on related action are pending in first instance. –– Whether the court first seised has already assessed jurisdiction as to the claim brought before it –– Whether the court first seised would be deemed to be competent on the related action brought before the court second seised. –– Whether the law of the Member State where the related action is pending permits the consolidation of the proceedings.

Article 19 Provisional, including protective, measures

Information that may be useful to the judge other than the judge having jurisdiction on the merits –– Whether equivalent or different provisional measures have already been requested or issued in the Member State whose courts are competent as to the merits of the same action. –– The reason why provisional measures have been denied in the state whose courts are competent as to the merits of the same action. –– Whether the proceedings on the merits are already pending and at what instance. –– Which kind of provisional measures are available in the Member State whose courts are competent as to the merits. –– Any information that may be useful to assess a prima facie case. –– Any information useful to assess whether there is an urgent need for a protective measure. (continued)

Model Protocol for Coordination Among Judges  867 Table A  (Continued) Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes Article

Information that could be requested and circumstances in which they may be needed Information that may be useful to the judge having jurisdiction on the merits –– Whether provisional measures have already been requested or issued in the Member State where the measures sought should be enforced by the judge competent as to the merits. –– The reason why provisional measures have been denied in the state of execution. –– Whether the enforcement in the state of execution may produce the same effects that the measures would produce in the state of origin. –– Any information that may be useful to assess a prima facie case. –– Any information useful to assess whether there is an urgent need for protective measures.

Article 41

–– Whether an appeal from the judgment has been lodged.

Staying of recognition proceedings

–– How long will it take the appellate court to reach a decision.

Article 52

–– Whether the enforceability of the decision is suspended in the Member State of origin by reason of the appeal.

Staying of proceedings(*)

(*) For a declaration of enforceability.

Council Regulation (EU) 2016/1104 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of the property consequences of registered partnerships Article Article 6 Jurisdiction in other cases

Information that could be requested and circumstances in which they may be needed –– Whether there are any proceedings pending before the court of a Member State in matters either of the succession of a registered partner (pursuant to Succession Regulation) or on the dissolution or annulment of the registered partnership. –– Whether the claim brought before the chosen court may be deemed as arising in connection with that case of succession proceedings or from the dissolution or annulment of the registered partnership. (continued)

868  EUFam’s Working Group ‘Judicial Committee’ Table A  (Continued) Council Regulation (EU) 2016/1104 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of the property consequences of registered partnerships Article Article 7

Information that could be requested and circumstances in which they may be needed In order to ascertain whether the case is covered by Article 6.

Choice of court –– Whether there is any proceedings pending before the court of a Member State in matters of the succession of a registered partner (pursuant to Succession Regulation) or for to rule on the dissolution or annulment of the registered partnership. –– Whether the claim brought before the chosen court may be deemed arising in connection the succession proceedings or with the dissolution or annulment of the registered partnership proceedings. Article 8 Jurisdiction based on the appearance of the defendant

As Article 8 excludes the possibility of ‘tacit prorogation’ in cases covered by Article 4. –– Whether there are any proceedings pending before the court of a Member State in matters of the succession of a partner (pursuant to Succession Regulation). –– Whether the claim brought before the chosen court may be deemed arising in connection the succession proceedings.

Article 9 Alternative jurisdiction Article 10 Subsidiary jurisdiction Article 11 Forum necessitates Article 17 Lis pendens

Whether the court(s) with jurisdiction according to Articles 4, 5, or 6 points (a), (b), (c) or (d) decided to decline it. –– Whenever it is unclear whether the courts of another Member State have jurisdiction pursuant to Articles 4–8, any useful information to help ascertain that. –– Whether a court in another Member State declined pursuant to Article 9. –– Whenever it is doubtful whether the courts of another Member State have jurisdiction pursuant to Articles 4–8 and 10, any useful information to help ascertain that. –– Whether a court in another Member State declined pursuant to Article 9. –– Whether proceedings have been initiated before another Member State court. –– Whether the two pending proceedings involve the same cause of action. –– When the other Member State court has been seised according to Article 14. –– What the estimated time for establishing jurisdiction is. –– Whether, under its domestic procedure rules, the court first seised may schedule the proceedings so that the decision on jurisdiction can be anticipated. (continued)

Model Protocol for Coordination Among Judges  869 Table A  (Continued) Council Regulation (EU) 2016/1104 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of the property consequences of registered partnerships Article Article 18

Information that could be requested and circumstances in which they may be needed –– Whether proceedings on a related action are pending in another Member State.

Related actions –– When the other Member State court has been seised, according to Article 14. –– Whether the proceedings pending in the other Member State involve related actions. –– Whether the proceedings on related actions are pending in first instance. –– Whether the court first seised has already assessed jurisdiction as to the claim brought before it. –– Whether the court first seised would be deemed competent on the related action brought before the court second seised. –– Whether the law of the Member State where the relation action is ­pending permits the consolidation of the proceedings. Article 19 Provisional, including protective, measures

Information that may be useful to the judge other than the judge having jurisdiction on the merits –– Whether equivalent or different provisional measures have already been requested or issued in the Member State whose courts are competent as to the merits of the same action. –– The reason why provisional measures have been denied in the state whose courts are competent as to the merits of the same action. –– Whether the proceedings on the merits are already pending and at what instance. –– Which kind of provisional measures are available in the Member State whose courts are competent as to the merits. –– Any information that may be useful to assess a prima facie case. –– Any information useful to assess whether there is an urgent need for a protective measure. Information that may be useful to the judge having jurisdiction on the merits –– Whether provisional measures have already been requested or issued in the Member State. where the measures sought should be enforced by the judge competent as to the merits. –– The reason why provisional measures have been denied in the state of execution. –– Whether the enforcement in the state of execution may produce the same effects that the measures would produce in the state of origin. –– Any information that may be useful to assess a prima facie case. –– Any information useful to assess whether there is an urgent need for protective measures. (continued)

870  EUFam’s Working Group ‘Judicial Committee’ Table A  (Continued) Council Regulation (EU) 2016/1104 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of the property consequences of registered partnerships Article

Information that could be requested and circumstances in which they may be needed

Article 41

–– Whether an appeal of the judgment has been lodged.

Staying of recognition proceedings

–– How long will it take the appellate court to reach a decision.

Article 52

Whether the enforceability of the decision is suspended in the Member State of origin by reason of the appeal.

Staying of proceedings(*)

(*) For a declaration of enforceability.

Table B (The situations in relation to which the need for coordination or exchange of information may occur more often are framed in bold)

Circumstances

Specific rule (Article.) in the relevant regulation

Choice Maintenance of court Reg (express or by Article 4 appearance) / Choice of law

Matters that may be the subject of communication among judges or in relation to which information about foreign law or procedures are needed EXERCISING JURISDICTION Whenever a court, other than the chosen court, is seised and its jurisdiction is contested because of the choice of court agreement, it may need information on the contents and interpretation of the domestic rules of jurisdiction of the Member State of the chosen court in order to assess whether the requirements provided by paragraph 1(c)(i) are met. __ Example: X, who is a citizen of a non-EU Country residing in Finland, seises a Finnish court claiming for divorce and maintenance from Y, who is also citizen of the same third Country and resides there. Y contests the jurisdiction of the Finnish court, claiming that Italian courts have exclusive jurisdiction as to maintenance and should enforce of a choice of court agreement stipulated to by the parties years before. X submits that the agreement is invalid according to Article 4 of Maintenance Regulation, since none of the requirements provided for by that article are met. According to Y Italian courts had jurisdiction to settle their dispute in matrimonial matters at the time the choice of court agreement was concluded: at that time there was no court of a Member State having jurisdiction pursuant to Articles 3, 4 and 5 of Brussels IIa Regulation, (continued)

Model Protocol for Coordination Among Judges  871 Table B  (Continued)

Circumstances

Specific rule (Article.) in the relevant regulation

Brussels 2a Article 12

Matters that may be the subject of communication among judges or in relation to which information about foreign law or procedures are needed neither the parties were resident in a Member State, and according to Y Italian courts’ jurisdiction to settle their dispute in matrimonial matters could be validly grounded on Italian domestic provision in light of Article 7 of Brussels IIa Regulation. The parties disagree on the correct interpretation of the Italian domestic rules on jurisdiction, but neither of them offer conclusive arguments. The Finnish judge has to understand which the correct interpretation of the Italian provision on jurisdiction is, in order to decide whether the choice of court is valid according to Article 4 of Maintenance Regulation. Whether the jurisdiction of the chosen court has ceased because the judgment on divorce, legal separation or marriage annulment or a judgment on parental responsibility has become final or the proceedings have otherwise ended. __ Remarks:

The information could be relevant to any court other than the chosen court in order to assess its jurisdiction. Succession Reg As to Article 6: Arts 6 and 7

–– Exchange of information with a court in the Member State of the chosen law, in order to verify whether the court better placed to rule on the succession is the one which has been seised or the one in the Member State of the chosen law. As to Article 7: –– Whether the court previously seised has declined jurisdiction in the same case pursuant to Article 6. ___ Remarks: According to Article 6, ‘the courts of a Member State whose law had been chosen by the deceased pursuant to Article 22 shall have jurisdiction to rule on the succession if: (a) a court previously seised has declined jurisdiction in the same case pursuant to Article 6 …’ (continued)

872  EUFam’s Working Group ‘Judicial Committee’ Table B  (Continued) Specific rule (Article.) in the relevant Circumstances regulation –– Marriage Property Reg

Matters that may be the subject of communication among judges or in relation to which information about foreign law or procedures are needed In order to ascertain whether the case is covered by Article 6

–– Whether there are any proceedings pending before the court of a Member State in matters of the succession Article 7 (pursuant to Succession Regulation) or on the dissolution or annulment of the registered partnership /divorce, legal –– Partnership separation, annulment of marriage. Property Reg –– Whether the claim brought before the chosen court may be deemed arising in connection the succession proceedArticle 7 ings or with the dissolution or annulment of the registered partnership proceedings, divorce, legal separation or annulment of marriage proceedings. ___ Remarks:

–– Marriage Property Reg

Article 7 applies in cases which are covered by Article 6, ie where no court of a Member State has jurisdiction pursuant to Articles 4 or 5. It could be difficult for a Member State court to ascertain this condition with regard to other Member State courts, particularly where they may ground jurisdiction on national criteria. –– Whether there are any proceedings pending before the court of a Member State in matters of the succession of a spouse or partner (pursuant to Succession Regulation).

Article 8

–– Whether the claim brought before the chosen court may be deemed as arising in connection with the succession –– Partnership proceedings. Property Reg ___ Article 8

Remarks: Article 8 Marriage Property Reg excludes the possibility of ‘tacit prorogation’ in cases covered by Articles 4 and 5. Article 8 Partnership Property Reg excludes the possibility of ‘tacit prorogation’ in cases covered by Article 4. –– Whether there are any proceedings pending before the court of a Member State in matters of the succession of a registered partner (pursuant to Succession Regulation) or to rule on the dissolution or annulment of the registered partnership.

Jurisdiction –– Marriage on property Property regime in Reg connection Article 6 with –– Partnership –– Whether the claim brought before the chosen court may succession or be deemed as arising in connection with that case of Property matrimonial succession proceedings or from the dissolution or annulReg partnership ment of the registered partnership. Article 6 matters __

(continued)

Model Protocol for Coordination Among Judges  873 Table B  (Continued)

Circumstances

Alternative jurisdiction in matters of property regime (marriage/ registered partnership)

Subsidiary jurisdiction

Specific rule (Article.) in the relevant regulation

Marriage Property Reg Article 9 Partnership Property Reg Article 9

Maintenance Reg Article 6

Matters that may be the subject of communication among judges or in relation to which information about foreign law or procedures are needed Remarks: Where the claim arises in connection with a succession, divorce-legal separation, marriage annulment or dissolution or annulment of the registered partnership, jurisdiction may be grounded on Article 6 only if no court of a Member State has jurisdiction pursuant to Articles 4 or 5. It could be difficult for a Member State court to ascertain this condition with regard to other Member State courts, particularly where they may ground jurisdiction on national criteria. Whether the court which Remarks: has jurisdiction according to Where the claim arises Articles 4, 5, 7 or 8 has decided in connection with a to decline. succession, divorce, legal Whether the court which separation, marriage has jurisdiction according to annulment or dissolution or Articles 4, 5 or 6 points (a), annulment of the registered (b), (c) or (d) has decided to partnership, jurisdiction decline. may be grounded in Article 6 only if no court of a Member State has jurisdiction pursuant to Articles 4 or 5. It could be difficult to a Member State court to ascertain this condition with regard to other Member State courts, particularly where they may ground jurisdiction on national criteria. The grounds on which the court of another Member State has established its jurisdiction, according to its own law, with regard to proceedings concerning the status of a person or parental responsibility, with the purpose to assess whether no court of a Member State has jurisdiction pursuant to Article 3 (c) and (d). (continued)

874  EUFam’s Working Group ‘Judicial Committee’ Table B  (Continued) Specific rule (Article.) in Matters that may be the subject of communication the relevant among judges or in relation to which information Circumstances regulation about foreign law or procedures are needed Succession Reg Whenever the deceased’s assets are located in two or more Member States, whether the Member States’ courts properly Article 10 exercised jurisdiction to rule on the succession as a whole according to Article 10(1). –– Marriage –– Whenever it is doubtful whether the courts of another Property Member State have jurisdiction pursuant to Articles 4–8, Reg any information useful to ascertain that. Article 10

–– Whether a court in another Member State declined pursuant to Article 9. –– Partnership Property Reg Jurisdiction based on the child’s presence

Residual jurisdiction

Article 10 Brussels 2a Article 13

Brussels 2a Article 14

Brussels 2a Article 7 Forum necessitatis

Maintenance Reg Article 7

In order to verify that no court of a Member State has jurisdiction pursuant to Articles 8 and 12: –– If there is a choice of court in favour of another Member State court, whether the court chosen has jurisdiction to settle the dispute in matrimonial matters, especially with regard to the conditions as required by Article 12(2). In order to have more information about the child’s life from other Member States where the child has been before. In order to verify that no court of a Member State has jurisdiction pursuant to Articles 8–13: –– If there is a choice of court in favour of another Member State court, whether the court chosen has jurisdiction to settle the dispute in matrimonial matters, especially with regard to the conditions required by Article 12(2). Whether the law of the Member State that has issued a judgment on legal separation provides for the conversion of legal separation to divorce. Whether court in a Member State has jurisdiction pursuant to Articles 3–6, especially under Article 3 (c) and (d), and Article 4(1)(c)(i) [in connection with Article 7 Brussels 2a], ie whenever such jurisdiction may be founded on national criteria. (continued)

Model Protocol for Coordination Among Judges  875 Table B  (Continued) Specific rule (Article.) in Matters that may be the subject of communication the relevant among judges or in relation to which information Circumstances regulation about foreign law or procedures are needed Succession Reg If the courts of two or more Member States are seised on the ground of jurisdiction provided by Article 11, there is a lis Article 11 pendens situation that can be dealt under Article 17. However an exchange of information between the two courts might be useful in order to ascertain which of those Member States is more closely connected with the case and would be the most appropriate forum for the case. –– Marriage –– Whenever it is doubtful whether the courts of another Property Member State have jurisdiction pursuant to Articles 4–8 Reg and 10, any information useful to ascertain that. Article 11

–– Whether a court in another Member State declined pursuant to Article 9. –– Partnership Property Reg Limit on proceedings aiming to modify or substitute a previous decision on maintenance obligations

Article 11 Maintenance Reg Article 8

Information about the actual residence of the creditor in the state that issued the decision. –– Whether proceedings to modify a previous decision or to have a new decision are pending in the state that issued the previous decision. –– Whether the competent authority in the state where the previous decision had been issued and the maintenance creditor residing therein has refused to or cannot exercise jurisdiction to modify that decision or give a new decision [prima facie, without any prejudice on the future assessment of jurisdiction by the same court]. –– Whether the competent authority in the state of origin has refused to modify the decision or to give a new decision. __ Remarks: For the purposes of Article 8, the state of origin may be a EU Member State as well as a 2007 Hague Convention Contracting State. (continued)

876  EUFam’s Working Group ‘Judicial Committee’ Table B  (Continued)

Circumstances

Matters that may be the subject of communication among judges or in relation to which information about foreign law or procedures are needed

Specific rule (Article.) in the relevant regulation

COORDINATION OF MAIN PROCEEDINGS Lis pendens/ duplication of proceedings

–– Maintenance Reg –– Whether proceedings have been initiated before another Member State court. Article 12 13 –– Brussels 2a Article 19 –– Succession Reg Article 17 –– Marriage Property Reg Article 17 –– Partnership Property Reg Article 17

–– Whether the two proceedings pending involve the same cause of action. –– When the other Member State court has been seised. –– What the estimated time for establishing jurisdiction. –– Whether, under its domestic procedure rules, the court first seised may schedule the proceedings so that the decision on jurisdiction can be expected. __ Remarks: Article 19 of Brussels 2a deals with dependent action relating to marriage as well as with lis pendens regarding proceedings relating to parental responsibility.

Related action

–– Maintenance Reg –– Whether proceedings on a related action is pending in the other Member State. Article 13 –– Succession Reg Article 18 –– Marriage Property Reg Article 18 –– Partnership Property Reg Article 18

–– When the other Member State court has been seised. –– Whether the proceedings pending in the other Member State involve related actions. –– Whether the proceedings on related action is pending in first instance. –– Whether the court first seised has already assessed jurisdiction as to the claim brought before it. –– Whether the court first seised would deem to be competent on the related action brought before the court second seised. –– Whether the law of the Member State where the relation action is pending permits the consolidation of the proceedings. (continued)

Model Protocol for Coordination Among Judges  877 Table B  (Continued)

Circumstances

Matters that may be the subject of communication among judges or in relation to which information about foreign law or procedures are needed

Specific rule (Article.) in the relevant regulation

Related action on different aspects of the same family dispute pending in different Member State without any possibility of consolidation before one single court

–– Brussels 2a Ch II

–– Partnership Property Reg Ch II

National rules on related matters falling outside the scope of the EC/EU regulations in force may also come into play.

Transfer of a case concerning a minor to a court better placed to hear it

Brussels 2a

–– Finding which court in the other Member State would be competent to deal with the case.

Declining of jurisdiction in the event of a choice of law in succession cases

Succession Reg

–– Maintenance Reg Ch II –– Succession Reg Ch II –– Marriage Property Reg Ch II

Article 15

Any information useful to prevent incoherent solutions as to the respective rights and duties of the parties (eg the decision on maintenance should be consistent with the decision on child’s custody and with the decision on the matrimonial property regime). __ Remarks:

–– Verifying with the other Member State court whether a transfer of jurisdiction is appropriate. –– Obtaining information about the child’s life in the other Member State.

Article 6

Exchange of information with a court in the Member State of the chosen law, in order to verify whether the court better placed to rule on the succession is the one which has been seised or the one in the Member State of the chosen law.

PROVISIONAL AND PROTECTIVE MEASURES Information that may be useful to the judge other than the judge having jurisdiction on the merits

–– Maintenance Reg Article 14 –– Brussels 2a Article 20 –– Succession Reg Article 19 –– Marriage Property Reg Article 19 –– Partnership Property Reg Article 19

–– Whether equivalent or different provisional measures have already been requested or issued in the Member State whose courts are competent as to the merits of the same action. –– The reason why provisional measures have been denied in the state whose courts are competent as to the merits of the same action. –– Whether the proceedings on the merits are already pending and at what instance. –– Which kind of provisional measures are available in the Member State whose courts are competent as to the merits. –– Any information that may be useful to assess a prima facie case. –– Any information useful to assess whether there is an urgent need for a protective measure. (continued)

878  EUFam’s Working Group ‘Judicial Committee’ Table B  (Continued)

Circumstances

Specific rule (Article.) in the relevant regulation

Information that may be useful to the judge having jurisdiction on the merits

Matters that may be the subject of communication among judges or in relation to which information about foreign law or procedures are needed –– Whether provisional measures have already been requested or issued in the Member State where the measures sought should be enforced by the judge competent as to the merits. –– The reason why provisional measures have been denied in the state of execution. –– Whether the enforcement in the state of execution may produce the same effects that the measures would produce in the state of origin. –– Any information that may be useful to assess a prima facie case. –– Any information useful to assess whether there is an urgent need for protective measures.

CHILD ABDUCTION CASES Jurisdiction in cases of child abduction

Brussels 2a Article 10

In order to verify whether a condition listed in Article 10(2)(b)(iii) and (iv) is met. –– Whether a case before the court in the Member State where the child was habitually resident immediately before the wrongful removal or retention has been closed pursuant to Article 11(7). –– Whether a judgment on custody that does not entail the return of the child has been issued by the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention.

Request for a return order

Brussels 2a Article 11(4)

–– Which kind of arrangements can be made to secure the protection of the child after their return. –– How long does it take to put in place adequate measures to secure the protection of the child after their return. In order to schedule the enforcement of the return order, whether adequate protective measures are already in place or when they can be. (continued)

Model Protocol for Coordination Among Judges  879 Table B  (Continued)

Circumstances

Matters that may be the subject of communication among judges or in relation to which information about foreign law or procedures are needed

Specific rule (Article.) in the relevant regulation Brussels 2a Article 11(5)

If the person who requested the return is residing in another Contracting State, whether their audition may be arranged in that state, by use of communications technology, such as videoconferences and teleconferences. __ Remarks: If the audition of the person who requested the return is to be used as evidence, Regulation (EC) 1206/2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters comes into play.

Non-return order

Brussels 2a Article 11(6)

–– Finding which court in the state where the child was residing before the abduction is competent according to the law of that state. –– Determining whether the competent court in the state where the child was residing before the abduction has received the copy of the nonreturn order and of all the relevant documents.

Brussels 2a Article 11(7)

–– Whether the custody case has been closed because the parties failed to make timely submissions. –– Whether the custody case has been resolved and what the decision implies regarding the child’s return. –– Whether it is the case to proceed to the child’s audition in the State where they have been abducted by use of communication technology, such as videoconferences and teleconferences. __ Remarks: If the child’s audition is to be used as evidence in the custody proceedings, Regulation (EC) 1206/2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters comes into play. If the child’s audition is to be used as evidence in the custody proceedings, Regulation (EC) 1206/2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters comes into play. (continued)

880  EUFam’s Working Group ‘Judicial Committee’ Table B  (Continued)

Circumstances

Specific rule (Article.) in the relevant regulation

Matters that may be the subject of communication among judges or in relation to which information about foreign law or procedures are needed

RECOGNITION, ENFORCEABILITY, ENFORCEMENT Grounds of Brussels 2a non-recognition Article 23(b)(d) for judgments relating to parental responsibility

If it is not apparent that the child and/or the person claiming the decision infringes their parental responsibility is affected by the decision, whether they have been heard (or why not) and whether there are records available of the auditions.

Staying of recognition proceedings

–– Whether an appeal from the judgment has been lodged.

–– Brussels 2a Article 27 –– Succession Reg Article 42

–– How long will it take the appellate court to reach a decision.

–– Marriage Property Reg Article 41 –– Partnership Property Reg Article 41 Maintenance Reg Article 25

Staying of proceedings for a declaration of enforceability

–– Brussels 2a Article 35

–– Whether an appeal from the judgment has been lodged. –– Whether the enforceability of the decision is suspended in the Member State of origin by reason of the appeal.

–– Whether an appeal from the judgment has been lodged.

–– Maintenance Reg –– What the time limit to lodge an appeal is in the state of origin. Article 35 –– Whether it could be appropriate to specify the –– Succession Reg time limit to lodge an appeal. Article 53 –– Whether the enforceability of the decision is –– Marriage suspended in the Member State of origin by Property Reg reason of the appeal. Article 52 –– Partnership Property Reg Article 52 (continued)

Model Protocol for Coordination Among Judges  881 Table B  (Continued)

Circumstances Refusal or suspension of enforcement of decisions on maintenance

Specific rule (Article.) in the relevant regulation

Matters that may be the subject of communication among judges or in relation to which information about foreign law or procedures are needed

Maintenance Reg

–– Whether the right to enforce the decision is extinguished by effect of prescription or the limitation of action under the law of the (*) It applies to decisions Member State of origin. Article 21 (*)

given in a Member State bound by the 2007 Hague –– Whether or how the limitation period may be Protocol on the law interrupted. applicable to maintenance –– Whether the competent court of the Member obligations

State of origin has been seised of an application for a review of the decision of the court of origin pursuant to Article 19.

–– Whether the enforceability of that decision is suspended in the Member State of origin. Practical arrangements for the exercise of rights of access

Brussels 2a Article 48

Clarification as to the judgment delivered by the courts of the Member State having jurisdiction as to the substance of the matter, in order to ensure that the practical arrangements for organising the exercise of rights of access that will be taken by the court of the Member State of enforcement respect the essential elements of that judgment.

Annex II: Model Form The scheme below provides an exemplificative list of information that could be useful to transmit when contacting a judge in another Member State. The contents of the initial communication, however, may change in the light of the circumstances of the actual case. The list is provided as a model form, that may be filled in, modified according to the actual needs and transmitted to the judge in another Member State in the case of written communication. SAMPLE FORM FOR THE INITIAL COMMUNICATION WITH A JUDGE IN ANOTHER MEMBER STATE 1. Judge and court details

2.  Case identification details

• Court: (name, address and Country code)

• Case number:

• Contact details of the judge: (Full name e-mail address, fax, telephone, others)

• Received by the court on:

(continued)

882  EUFam’s Working Group ‘Judicial Committee’ (Continued) SAMPLE FORM FOR THE INITIAL COMMUNICATION WITH A JUDGE IN ANOTHER MEMBER STATE 3.  Parties to the proceedings and other subject involved: • Applicant’s details: Full name and address • Defendant’s details: Full name and address • Details of other subjects involved in the dispute: Details as parties (or other subjects) name or address should be omitted whenever they are not strictly necessary to the coordination of proceedings. Have the parties been notified of the nature of the proposed communication?

(specify)

  Yes   No Have the parties consented to the exchange of information?

(specify)

  Yes   No 4. Nature of the case (one or more options may be selected)  Divorce, legal separation or marriage annulment (Reg. (EC) 2201/2003)

 Maintenance obligation (Reg (EC) 4/2009)

  Parental responsibility (Reg (EC) 2201/2003)

 Matrimonial property regimes (Reg (EU) 2016/1103)

  Child abduction (Reg. (EC) 2201/2003)

 Property consequences of registered partnerships (Reg (EU) 2016/1104)

 Other: (specify) 5. Brief description the case

6.  Issue on which the communication is sought (the list of issues below is drafted in accordance with Annex I table B)   EXERCISING JURISDICTION  Choice of court (express or by appearance) / Choice of law

(Information needed)

 Jurisdiction on property regime in connection with succession or matrimonial / partnership

(Information needed)

 Alternative jurisdiction in matter of property regime (marriage/registered partnership)

(Information needed)

 Subsidiary jurisdiction

(Information needed) (continued)

Model Protocol for Coordination Among Judges  883 (Continued) SAMPLE FORM FOR THE INITIAL COMMUNICATION WITH A JUDGE IN ANOTHER MEMBER STATE   Jurisdiction based on the child’s presence

(Information needed)

  Residual jurisdiction

(Information needed)

  Forum necessitatis

(Information needed)

 Limit on proceedings aiming to modify or substitute a previous decision on maintenance obligations

(Information needed)

  Other (specify)

(Information needed)

  COORDINATION BETWEEN MAIN PROCEEDINGS   Lis pendens / duplication of proceedings

(Information needed)

  Related action

(Information needed)

 Related action on different aspects of the same family dispute pending in different Member State without any possibility of consolidation before one single court

(Information needed)

 Transfer of a case concerning a minor to a court better placed to hear it  Declining of jurisdiction in the event of a choice of law in succession cases

(Information needed)

  Other (specify)

(Information needed)

  PROVISIONAL AND PROTECTING MEASURES  The requesting judge is competent on the merits (Specify the ground)

(Information needed)

 The requesting judge is not competent on the merits

(Information needed)

  CHILD ABDUCTION CASES   Jurisdiction in cases of child abduction

(Information needed)

  Request for a return order

(Information needed)

  Non-return order

(Information needed)

  Other (specify)

(Information needed)

  RECOGNITION, ENFORCEABILITY, ENFORCEMENT  Grounds of non-recognition for judgments relating to parental responsibility

(Information needed)

 Staying of recognition proceedings

(Information needed)

 Staying of proceedings for a declaration of enforceability

(Information needed)

 Refusal or suspension of enforcement of decisions on maintenance given in a Member State bound by the 2007Hague Protocol on the law applicable to maintenance obligations

(Information needed)

(continued)

884  EUFam’s Working Group ‘Judicial Committee’ (Continued) SAMPLE FORM FOR THE INITIAL COMMUNICATION WITH A JUDGE IN ANOTHER MEMBER STATE  Practical arrangements for the exercise of rights of access

(Information needed)

  Other (specify)

(Information needed)

  OTHER: (specify the issue and the information needed) 7.  Reasons for which information is urgently needed 8. List of attached documents

a) b) c) d) e) f)

9. Proposal for timing and arrangements for subsequent contacts Available means of communication

Details

 E-mail

(address)

 Telephone

(number)

Further information

(day(s) and time)  Fax

(number)

 Other (specify)

(details)

Communication languages Language preferences

1. 2. 3. 4.

Speaking (specify CEFR level from A1 to C2 where possible)

Writing (specify CEFR level from A1 to C2 where possible)

Interpreter/ translator – need/ availability

Further information

INDEX

Abbreviations used in the index   AFSJ (area of freedom, security and justice)   Borrás (A Borrás, ‘Explanatory Report on the Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters’ (1998))   Brussels Convention (Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (1968))   Brussels I (Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (2000))   Brussels Ia (EP/Council Regulation (EU) No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (2012)) (Brussels I Recast)   Brussels II (Council Regulation (EC) No 1347/2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility (2000))   Brussels IIa (Brussels IIa Regulation (matrimonial matters) (2003))   Brussels IIa (Council Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (2003))   Brussels IIter (Council Regulation (EU) 2019/1111 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (2019))   Brussels IIter Proposal (Commission Proposal for a Council Regulation (EU) 2019/1111 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (2016)) (also referred to as Brussels IIa Recast)   CEFL (Commission on European Family Law)   CFR (Charter of Fundamental Rights (2007))   CoE (Council of Europe)   CRC (UN Convention on the Rights of the Child (1989))   CRD (Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States)   EAPOR (European Account Preservation Order Regulation (2014))   ECCC (European Convention on Recognition and Enforcement of Decisions concerning Custody of Children (1980))   ECECR (European Convention on the Exercise of Children’s Rights (1996))   ECJRE (European Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters (1998))   ECS (European Certificate of Succession)   EEOR (European Enforcement Order Regulation (2004))   EESC (European Economic and Social Committee on the Brussels)   EJN-NCP (European Judicial Network National Contact Points)   EJN/EJN Civil (European Judicial Network [Civil])   EP (European Parliament)   Good Practices Seminar (International Exchange Seminar of the EUFam’s Project (May 2017))   HCAC (Hague Convention on the Civil Aspects of International Child Abduction (1980)) (Hague Child Abduction Convention)

886  Index                                                                                

HCCH (Hague Conference on Private International Law) HCD (Hague Convention on the Recognition of Divorce and Separation (1970)) HCPA (Hague Convention on the Protection of Adults (2005)) HCPC (Hague Convention on the Protection of Children (1996)) HCPI (Hague Convention on the Powers of Authorities and the Law Applicable to the Protection of Infants (1961)) HCSC (2007) (Hague Convention on the International Recovery of Child Support (2007)) (Hague Child Support Convention) HCTD (Convention on the Conflicts of Laws relating to the Form of Testamentary Dispositions (1961)) HDC (Hague Divorce Convention (1970)) HMC (1956) (Hague Convention on the Law Applicable to Maintenance Obligations towards Children (1956)) HMC (1958) (Hague Convention on the Recognition and Enforcement of Maintenance Obligations towards Children (1958)) HMC (1973) (Hague Convention on the Recognition and Enforcement of Maintenance Obligations towards Children (1973)) HMC (2007) (Hague Convention on the International Recovery of Child Support and other Forms of Family Maintenance (2007)) (Hague Maintenance Convention) HMP (Hague Protocol on the Law Applicable to Maintenance Obligations (2007)) IDI (Institut de droit international) IDI Tallin Report (IDI Tallin Report on Universal Civil Jurisdiction with Regard to Reparation for International Crime (2015)) IHNJ (international Hague Network of Judges) ILA (International Law Association) ILA Sofia Guidelines (ILA Sofia Guidelines on Best Practices for International Civil Litigation for Human Rights Violation (2012)) JCCM (Judicial Cooperation in Civil Matters having cross border implications (TFEU 81)) LC I (Lugano Convention on jurisdiction and enforcement of judgments in civil and commercial matters (1988)) LC II (Lugano Convention on jurisdiction and enforcement of judgments in civil and commercial matters (2007)) MPR (matrimonial property regime) MPRR (Matrimonial Property Regimes Regulation (2016)) MR (Maintenance Regulation (2009)) Opinion 2/13 (CJEU Opinion 2/13 (2014) (EU accession to the ECHR)) PCRPR (Property Consequences of Registered Partnerships Regulation (2016)) PIL (private international law) PILA (Private International Law Act) PRA (parental responsibility agreement) Protocol (1997) (TEC, Protocol (No 30) on the application of the principles of subsidiarity and proportionality (1997)) REIO (regional economic integration organisation) Rome III (Regulation 1259/2010 implementing enhanced cooperation on law applicable to divorce and legal separation (2010)) SR (Service Regulation (2007)) SR (Succession Regulation (2012)) Tampere (Presidency Conclusions, Tampere European Council, 15–16 October 1999) TEC (Treaty Establishing the European Community (2002)) TEU (Treaty on European Union (2007)) TFEU (Treaty on the Functioning of the European Union (2007)) VCLT (Vienna Convention on the Law of Treaties (1969)) WCCP (Unesco World Conference on Cultural Policies (Mexico, 1982))

Index  887 abduction of a child: see child abduction AFSJ (area of freedom, security and justice) (TEU 3(2)/TFEU 67–76) characterisation as constitutional framework for EU civil procedure initiatives, 163–4 free movement facilitation as objective (TEU 3(2)), 164 freedom from ‘proper functioning of the internal market’ objective, 164 establishment (TEU 3(2)/TFEU 67(1)), 163 JCCM: see JCCM (TFEU 81) jurisdictional issues: see jurisdiction key principles access to justice/mutual recognition … in civil matters (TFEU 67(4)), 163, 164, 189 Brussels IIa Recital 3, 163 mutual recognition of judgments and of decisions in extrajudicial cases (TFEU 81(1)), 163, 164, 189 respect for fundamental rights/traditions of Member States (TFEU 67(4)), 163 references to Brussels Ia Recital 3, 163–4 Brussels IIa Recital 1, 163–4 Leffler, 163–4 MR Recital 1, 163–4 PCRPR Recital 1, 163–4 Rome III Recital 1, 163–4 SR Recital 1, 163–4 TEU Recitals 4 and 12/TEU 3(2), 164 Algeria divorce in, 36, 41–2, 298n70 polygamy in, 40–1 applicable law/jurisdiction, harmonisation of rules on (forum/ius harmony): see also autonomy of the parties (choice of law); maintenance obligations (forum/ius harmonisation); model clauses (choice of law/court), unifying forum and ius; MPRR (2016); MPRR (2016)/PCRPR (2016); nationality as a connecting factor/applicable law; preliminary questions (applicable law); Rome III (divorce) (forum/ius harmonisation); SR (2012), forum/ius harmonisation benefits avoidance of linguistic problems, 800 avoidance of resort to foreign law, 800 cost benefits, 595, 800 judicial ease with the applicable law, 800 EUFam’s model clauses, 738–70: see also model clauses (choice of law/court), unifying forum and ius

EUFam’s Policy Guidelines, assessment, 800 EUFam’s Policy Guidelines, recommendations abandonment of first common habitual residence (Brussels IIa 26(1)), 801, 804 adoption of SR approach, 801 ‘genuine link’ between parties and forum, need for ‘close connection’ (Rome III Recital 21), 11–12 ‘closest connection’ (MPRR 26(1)(c)), 11, 327 ‘real’ link (Brussels II Recital 12), 10 ‘sufficient connection’ (forum necessitatis) (MPRR/PCRPR 11(2)/MR Recital 16), 11n35, 326–7 as unspoken requirement/aid to interpretation, 11 Good Practice Seminar discussion, 595–6 habitual residence, role in securing, 133–5, 147, 189, 494–5, 759 impediments, 365, 595–6 as a key objective, 165, 189, 191, 193, 201, 595–6 objectives free movement of juridical decisions, 10 free movement of persons and, 360–4 legal certainty, 11 predictability of law/forum, 11 area of freedom, security and justice: see AFSJ Argentina, same-sex marriage, 53n4 asylum policy (TFEU 78), 349 asymmetrical jurisdiction clauses, 641–3 Austria best interests of the child (including Povse and Sévère, 375, 376–80 child’s right to be heard, 309 foreign law, 33–4, 275, 279, 280, 281, 284, 285 HMC (1956), applicability, 385, 391 lis pendens/res judicata, misapplication, 532–3 recognition and enforcement in, 318, 604 same-sex marriage, 53n4 surnames in, 9 autonomous concepts autonomy vs unity/universality, means of balancing, 201 SR examples, 201 definition, 111 examples ‘habitual residence’, 14, 119–21, 136–8, 149, 150, 360–1, 455, 528, 599 ‘maintenance obligation’ (MR Recital 11), 78, 79, 180–1, 236 ‘maintenance proceeding instituted’ (MR 75(1))/‘legal proceedings instituted’ (Rome III 18(1)) distinguished, 82 ‘matrimonial property regime’, 85, 104 mutual trust, 119

888  Index ‘parental responsibility’, 63, 65–6, 68, 70 ‘registered partnerships’, 110–11, 112n15 res judicata, absence of, 198 rule determining date of seisure of the court, 203, 208, 209 individual autonomy/independence of each Regulation, 136–8 non-transposability of CJEU jurisprudence from one area of EU law to another (A), 121, 136n14, 137–8 ‘marriage’, exclusion, 106n15 autonomy of the parties (choice of court/ jurisdiction), 13: see also MR (2009), jurisdiction (MR 3–14), choice of court, parties’ right of (MR 4); SR (2012) (jurisdiction (SR 4–19)), choice of court (SR 5) consolidation of proceedings and, 593, 804–5 contradictory provisions (Brussels IIa/MR 4), 184, 803 EUFam’s Policy Guidelines, 804–5 addition of maintenance claims to Brussels IIa jurisdiction, 805 agreement in writing by time of seisure of the court, 805 amendment of Brussels IIa to match MR 4/Rome III 5, 804–5, 816 ‘substantial connection’ requirement, 805 free movement of persons and, 246, 356 growing provision for in Member States’ national law, 805n19 parental responsibility (Brussels IIa 12(3)), 629–33: see also prorogation of jurisdiction (Brussels IIa 12), parental responsibility and (Brussels IIa 12(3)) pros and cons, 251–5 avoidance of rush to a court, 805 cost benefits, 805 family matters/divorce, 253–5 non-conventional marriages, problems, 805 parental responsibility/prorogation of jurisdiction (Brussels IIa 12), limitations on, 251–3, 478–9 autonomy of the parties (choice of law): see also choice of court/choice of law clauses, provisions on (text); model clauses (choice of law/court) applicability of same substantive law to all aspects of matrimonial property/ maintenance claims, advantages, 242–3 choice of law provisions HMP 7–8, 239, 244–5: see also maintenance obligations, choice of law (HMP 7–8) HMP 8(1)(a)/SR 22(1)(2), 13, 157–8, 643–5

MPRR/PCRPR 22, 13, 245–6: see also MPRR (2016)/PCRPR (2016), applicable law, parties’ right to choose (MPRR/ PCRPR 22) MPRR/PCRPR/HMP/Rome III/SR, 13, 25, 101–2, 235–6 MR 15 (reference to HMP), 4, 181, 244, 251–3 Rome III 5(1): see Rome III (divorce), applicable law (parties’ choice of applicable law (Rome III 5)) definition/characterisation, 201 as conflictual tool for private ordering, 247, 257 as expression of cultural identity, 13 as novel element of EU PIL, 11 difficulty/rarity of use, 256–7 dual/multiple nationality and, 157–8 enforcement of parties’ agreement law applicable to, 247 third party resolution of dispute and, 247 validation/homologation, 247 family matters, limitations (prorogation), 254–5 justification for, 246–9 HMP Explanatory Report (stability and foreseeability), 246 legal certainty/predictability for the parties, 11, 247–8, 627, 803–4 as means of resolving uncertainties of habitual residence as main connecting factor, 248 MPRR Recital 45/PCRPR Recital 44 (facilitation of the management of property by spouses or partners), 246 Rome III Recital 15 (increased mobility through flexibility and greater legal certainty), 246 as tool to facilitate the lives of citizens, 247 maintenance (HMP 7/HMP 8), 394 parental responsibility (Brussels IIa 8/HMP 8), limitations, 239, 251–3 recognition of decision in third states, 255–6 unification of the applicable law, as means to example of, 249–50 limitations, 250–5 as motivating factor for the parties, 248–9 Belgium foreign law, 275, 279, 280, 284 habitual residence as connecting factor in succession matters, 133 HCPC applicable law provisions, difficulty with, 268 parties’ choice of law in, 256 registered partnerships, 110n6 same-sex marriage, 53n4 surnames in, 8

Index  889 best interests of the child best interests of the parents distinguished, 477–8 child’s right to be heard, 309–10, 318–19 PRA, effectiveness, 438–9 choice of court and, 165, 187 court’s right to raise ex officio, 476–7 enforcement of decisions (Brussels IIa 47) and, 317–18 expulsion, protection against (CRD 28(3b)), 368–9 family life (ECHR 8), abduction of a child and, 376, 377–9, 382–3 free movement and Brussels IIa parental responsibility provisions, 357–8, 359–60 Child and Family Agency, 358, 359–60 habitual residence and, 124, 468, 472 HCPC applicable law provisions, difficulties with, 264, 268 jurisdiction and (Brussels IIA Recital 12), 124, 165 lis pendens/parallel proceedings and, 220 parental responsibility (Brussels IIa 8)/ancillary maintenance obligations (MR 3(d)), 187, 539–41 parental responsibility (Brussels IIa Recital 12) ancillary maintenance obligations (MR 3(d)) (A v B), 187 examples of exercise, 506 free movement and, 357–8, 359–60, 369 as overarching principle, 70, 165, 377 proximity principle and, 144, 200, 468 rejection of designated law (HCPC 22), 267 perpetuatio fori (Brussels IIa 9) and, 219 prorogation of jurisdiction (Brussels IIa 12(1)(b) and 12(3)(b)), 154–5, 176–7, 182n114, 252, 436n39, 476–8, 510, 530, 833–4: see also prorogation of jurisdiction (Brussels IIa 12) E v B, 176n86 proximity principle (Brussels IIa Recital 12), 144, 200, 468, 630n8 Brussels IIter Recital 19, 630n8 recognition of decisions of Member State courts/ grounds for refusal (Brussels IIter Proposal), 309–10 relevant factors, 477–8 return of a child (Brussels IIter Proposal 26), 319, 602–4 succession and, 100 Matoušková, 69–70, 99–100 transfer of jurisdiction (Brussels IIa 15), 442, 805 Brussels IIter 13 (clarification of forum non conveniens), 481, 532

transfer of jurisdiction (HCPC 8(2)(a)/ HCPA 8(2)(a)), 155–6, 339 UNCRC 3(1), 376 Brazil, same-sex marriage, 53n4 Brexit child abduction and, 341–2 divorce following, 337–9 forum-shopping risks, 338–9 HDC (1970), role, 337–9 entry into force, date, 61n61 maintenance obligations and, 335–6, 620 Brussels IIa: see also Brussels IIa (jurisdiction); and individual headings such as parental responsibility (Brussels IIa) Note: material relating to Brussels IIter/ Brussels IIter Proposal is indexed under individual subject headings such as ‘prorogation of jurisdiction’ applicable law, absence of provisions on, 61 CFR principles and (Recital 33) equality between men and women (CFR 23), 200 family’s right to legal, economic and social protection, 200 freedom of movement and of residence (CFR 45), 200 private and family life (CFR 7), 200 right to marry and found a family (CFR 9), 200 rights of the Child (CFR 24), 200 criticisms of ‘matrimonial matters’, failure to define, 54 narrow scope, 54 enforcement procedure (Brussels IIa 47) applicable law (Brussels IIa 47(1) (law of the Member State of enforcement)), 316 differing approaches to/means of reducing problems caused by, 317–18 enforcement (return of a child) (Brussels IIa 11(6)-(8)), 318–19 enhanced cooperation and, 6, 236, 739, 757 judicial coordination, examples of provisions for an exchange of information, 854–9 jurisdiction: see Brussels IIa (jurisdiction) lis pendens: see lis pendens material scope (Brussels IIa 1) (excluded matters (Brussels IIa 2(3))) absence of forum necessitatis clause, 327, 588–9: see also forum necessitatis annulment, divorce or separation procedures of a religious nature, 55, 814 Brussels II compared, 64 competency issues where a court’s jurisdiction includes both dissolution and post-dissolution matters, 53

890  Index grounds for divorce, property consequences or any other ancillary measures (Recital 8), 54, 336–7, 505–6, 549–50 informal partnerships not requiring formal dissolution, 59 maintenance obligations/post-divorce pensions, 54 private divorce (Sahyouni), 10n30, 15, 35–7, 55, 172–3, 487–8, 550 registered partnerships, 59 Rome III Recital 10 compared, 50, 55 strict interpretation of Regulation, effect, 59 material scope (Brussels IIa 1) (included matters (Brussels IIa 1(a))): see also parental responsibility annulment proceedings after the death of one of the parties (Brussels IIa 3/Mikołajczyk), 55 annulment proceedings by a third party after the death of one of the parties, 55 dissolution of matrimonial ties (Recital 8), 55 divorce, legal separation or marriage annulment (Brussels IIa 1(a)), 54 parental responsibility (Brussels IIa 1(1)(b)), 62 wardship proceedings, 66 personal scope (absence of personal prerequisites), 62, 588–9 ‘Practice Guide for the application of the Brussels IIa Regulation’ (2014) (Commission), 64, 68, 219, 407–8, 467, 669 recognition and enforcement of decisions (Brussels IIa 21–36) grounds for non-recognition (Brussels IIa 22 and 23), failure to serve documents (Brussels IIa 22(b)), 227, 313–14 irreconcilability with later judgment relating to parental responsibility (Brussels IIa 23(f)), 313–14 same-sex marriage/registered partnerships, need to clarify inclusion of, 812 successes, as ‘the cornerstone of judicial cooperation in family matters in the EU’, 53–4 as successor to Brussels II Convention (Recital 3)/Brussels II Regulation (Recital 28), 166 as intended replacement of HCAC, rejection by Member States/Brussels IIa 11 as supplement, 401 temporal scope (Brussels IIa 64), 433, 629, 632, 670

territorial scope Brexit, implications, 61: see also Brexit EU Member States except Denmark, 61 relationship with Member States PIL legislation/primacy of the Regulation: see EU law, primacy UD v XB, 62, 144, 504–5, 524–5 Brussels IIa (jurisdiction) alternatives vs hierarchical approach, 153–4, 166–7, 516, 592–3 choice of court: see autonomy of the parties (choice of court/jurisdiction) classic heads of jurisdiction (Brussels IIa 3), 166–7 nationality (Brussels IIa 3(1)(b)), 153–4 nationality of the child (Brussels IIa 12(3)(a)), 155 prioritisation (Brussels IIa 6), 167 divorce, legal separation and marriage annulment (Brussels IIa 6–7): see forum necessitatis free movement of persons as basis for developing common rules (Brussels IIa Recital 1), 166 simplification of recognition of judgments (Borrás), 166 habitual residence (Brussels IIa 3(1)(a)), 490, 527–8 judicial dialogue, desirability, 180 parental responsibility: see parental responsibility (Brussels IIa) (jurisdiction) principles: see also Brussels IIa, CFR principles and (Recital 33) matrimonial matters and parental responsibility distinguished, 200 mutual trust (Brussels IIa Recital 2), 166 private divorce: see private divorce recognition of judgments, dependence on common rules of jurisdiction, 166 residual jurisdiction (Brussels IIa 7), 166, 358 judicial coordination, scope for, 874 residual jurisdiction (Brussels IIa 14), 62, 480 judicial coordination, scope for, 874 Bulgaria Brussels I Regulation, date of applicability, 83 EUFam’s project in, 429 reasons for inclusion, 461 foreign law, 275, 279, 280, 282, 284 free movement (Gogova), 369–70 parental responsibility (jurisdiction), difficulties, Brussels IIa–HCPC interface (Brussels IIa 61/HCPC 52(1)), 437 Schengen area and, 350 SR and, 101

Index  891 Canada HMP and, 385 same-sex marriage, 53n4 transfer of jurisdiction to, impossibility, 332–3 Central Authorities (Brussels IIa 53–8) (parental responsibility), 399–414 Brussels IIter Proposal, proposed changes/ criticisms of, 413–14, 613, 811 absence of effective time frame provisions/ including for urgent cases, 811 failure to require Member States to improve internal cooperation, 811 failure to require a single Central Authority, 811 cooperation on parental responsibility cases (Brussels IIa 55), 403–4 collection and exchange of information on the situation of the child (Brussels IIa 55(a)), 403–4 facilitation of agreement between parties (Brussels II 55(e)), 403 facilitation of cross-border cooperation, 403 as mirror image of other Brussels IIa provisions, 403 establishment and designation (Brussels IIa 53) multiple authorities, 401 under multiple conventions, 401–2 general functions (Brussels IIa 54), 403 EJN as means of communication, 405 history of Brussels I and Brussels II Conventions/ Brussels II Regulation, absence from, 399–400 Brussels IIa–HCPC relationship, 400–1 HCAC, 6–7, 400 HCPC, 5–6, 400–1 mediation framework, 403, 610–11, 829 problems encountered by Central Authorities failure to acknowledge/respond to requests, 405 identification of competent Central Authority in case of multiple authorities, 404 inadequate resources, 405–6, 613, 810–11 lack of detail in the Regulation/ambiguities, 406, 407 lack of understanding of requirement, 405–6 multiplicity of legal sources, 812 slow response to requests, 405 translation issues, 406 problems, recommendations for addressing, 414 national synchronisation of Central Authorities to meet requirements of all the interconnected international instruments, 811

review of national implementing legislation, 811 problems, tools for resolving cross-border training, 412–13 e-Justice Portal, 409: see also EJN Civil explanatory reports/practice guides on related international instruments, 407–9 implementing legislation, 408–9 role, tasks and resources, variety of, 402–3 states with multiple systems of law/territorial units (HCPC 47–8), 401–2 Central Authorities (MR 49–61), 415–25 access to information (MR Recital 33/MR 62), 420–2 collection by all appropriate and reasonable means (MR 61(1)), 421 data protection (Directive 95/46/EC)/deferral in case of risk to recovery, 421, 422 exchanging information obligation (MR 50(1)(a))/detailed provision for, 421 information for collection/sharing (MR 61(2)), 421 obligation to ensure that the relevant information is collected (MR 61)/ transmitted (MR 62), 421 refusal of transmissions, grounds (national security or public safety) (MR 61(2)), 421–2 application forms, problems Good Practices Seminar discussion, 619–20 ‘too numerous, complex and difficult to complete’, 619–20 translation problems, 619–20 translation requirement only ‘if necessary’ (MR 59(2)), 620 cooperation obligation (MR 50(1)(a)) Good Practices Seminar discussion, 618–19 as mirror image of HMC (2007), 416, 423 varying standards, 618–19 establishment and designation (MR 49), multiple authorities (MR 49(2)), 401 general obligations (MR 50), 416 exercise by public bodies other than the Central Authorities (MR 50(1)(a)), 417 promotion of cooperation (MR 50(1)(a)), 417–18 obligation to use, whether (MS v PS), 419, 619 specific functions (MR 51) administrative vs judicial functions (MR 51(2)), 417 assistance in the maintenance procedure as a right vs obligation (MR 51/MR Recitals 31 and 32), 419

892  Index exercise at the request of another Central Authority, 418 in particular the transmission, receipt, initiations or facilitation of proceedings (MR 51(1)), 416 ‘soft’ legal aid (MR 51(1) and (2)), 419 specificity, reasons for/advantages of, 417 transmission and receipt of applications as separate issue (MR 51(1)(a)), reasons, 419 states with multiple systems of law/territorial units (HCPC 47–8), 401–2 transmission, receipt and processing of information (MR 58), 419 ‘most rapid and efficient means’ (MR 58(7))/greatest possible use of modern communications technologies (MR Recital 23), 420 right of Central Authority to refuse transmission (MR 58(2) and (8)), 420 Charter of Fundamental Rights (CFR), Brussels IIa application of: see Brussels IIa, CFR principles and (Recital 33) child abduction: see child abduction (ECHR 8/Brussels II/Brussels IIa/HCAC); child abduction (ECHR 8/Brussels II/ Brussels IIa/HCAC), jurisprudence; lawful removal of a child; return of the child (Brussels IIa/HCAC); return of the child (recognition and enforcement of court order) (Brussels IIa 42/HCAC) child abduction (ECHR 8/Brussels II/ Brussels IIa/HCAC) best interests of the child and, 376, 377–9, 382–3 breach of custody distinguished, 492–3 Brexit, effect, 341–2 CoE Recommendation on Preventing and Resolving Disputes on Child Relocation (2015), 440 concentration of jurisdiction (Brussels IIter Proposal), 611–13 EU compliance with obligations to non-EU contracting parties, 340–2 EUFam’s Policy Guidelines, assessment, 827 judicial coordination, scope for, 878–80 mediation and Brussels IIter Proposal, 610–11 Central Authorities’ provision for, 403, 610–11 European Parliament Mediator, 610–11 pros and cons, 610–11

one-appeal limit Brussels IIter Proposal provision for, 611, 827–8 EUFam’s Policy Guidelines, recommendation, 828 Good Practice Seminar discussion of, 611 national practice, 611 reasons for, 611 principles/rules (ECtHR) best interests of the child, primacy, 376, 377 ‘fair balance’ between interests of parties, the child and public order, 374–5, 376 HCAC rules, 374–5 positive obligation to enforce a foreign jurisdiction’s order to return a child, 375–6 principles/rules (EU) automatic enforceability of order to return (Brussels IIA 11(8), 40 and 42), 376–7 integration of security, freedom and justice/ mutual trust, 376, 378 problems/areas of friction, 204, 376–8, 554 failure to realise that the holder of a parental responsibility may be a natural or legal person (Brussels IIa 2(7)/HCAC 3(a)), 64–5, 441 national courts’ automatic resort to national PIL with potential breach of Brussels IIa 8/Gogova, 440–1 overlong proceedings, 441 Povse v Alpago as potential solution vs Avotiņš, 378–83 right of free movement, risk of abuse, 368–9, 440–1 child abduction (ECHR 8/Brussels II/ Brussels IIa/HCAC), jurisprudence CJEU Opinion 1/13, 340–1 Povse, 375n15, 377–80, 382–3, 603 ECtHR Avotiņš, 382 MA, 375–6, 379 Maumousseau and Washington, 374–5, 376 MR and LR, 377 Neulinger and Shuruk, 374–5, 376 Pirozzi, 382n49 Povse, 375n15, 379–80 Royer, 382 Sévère, 375, 376 Šneersone and Kampanella, 365–6, 377, 378 X v Latvia, 374–5, 376, 382 national courts, Re E (Children) (UKSC), 375

Index  893 child maintenance: see maintenance (child); MR (2009), scope/objectives, maintenance obligations arising from a family relationship … [including] a child (MR 1(1)/HMP 1(1)) child’s right to be heard applicable law (procedure), Member State law, 528–9 Brussels IIter Proposal 20/critique, 229–30, 309–10, 315–16, 321, 438–40, 607–9 Brussels IIter Recitals 39, 53 and 57 (recognition of CFR 24(1) and UNCRC 12 obligations), 528–9, 823 CFR 24(1)/UNCRC 12, 528–9 EUFam’s Policy Guidelines, 823–4 jurisprudence Aguirre, 229 Casarrubios, 229, 309, 608 minimum standards, possibility of, 608–9 CRC 12, 609 opportunity for the child to be heard, dependence of certificate on (Brussels IIa 42(2)(a)), 228–30, 308–10, 318–19, 607–9 issue of certificate, difficulties/rarity of use, 309–10, 318–19, 604, 823 ‘unless a hearing was considered inappropriate’, 229–30 PRA, effectiveness, 438–9 refusal of recognition of a decision of a Member State court in absence of hearing (Brussels IIa 23(b)), 228–30, 308–10, 498–9, 528–9 Brussels IIter Proposal 20/critique, 229–30, 309–10, 315–16, 321, 438–40, 607–9 exequatur, importance of, 315–16 inclusion of reference to hearing in decision, importance, 438, 439–40 national courts’ variety of approaches, 228–9, 438–40, 621–2, 823 problems associated with Brussels IIa 23(b), 309–10 urgent cases (Brussels IIa 23(b)), 229–30 return of the child, as obstacle to, 318–19 choice of court (divorce, separation or annulment proceedings (Brussels IIa)), absence of provision for, EUFam’s Policy Guidelines recommendations, forum/ius harmony, desirability (Rome III formula), 816

choice of court/choice of law clauses, provisions on (text): see also autonomy of the parties (choice of court/jurisdiction); autonomy of the parties (choice of law); model clauses (choice of law/court) Brussels IIa 12 (prorogation of jurisdiction), 778–9 64 (transitional provisions), 779 72 (entry into force), 779 Brussels IIa Proposal, 3 (choice of court in proceedings relating to divorce and legal separation), 780 Brussels IIter 10 (choice of court), 783–4 Recital 23, 782–3 Recital 24, 783 Brussels IIter Proposal 10 (choice of court for ancillary and autonomous proceedings), 781–2 Recital 16, 780–1 Hague Maintenance Protocol 7 (designation of the law applicable for the purpose of a particular proceeding), 787 8 (designation of the applicable law), 788 Hague Maintenance Protocol, Council decision of 30 November 2009 on the conclusion of 4 (provisional application), 788–9 5, 789–90 Matrimonial Property Regime Regulation 5 (jurisdiction in cases of divorce, legal separation or marriage annulment), 789–90 7 (choice of court), 790 22 (choice of the applicable law), 790–1 23 (formal validity of the agreement on a choice of applicable law), 791 24 (consent and material validity), 791 69 (transitional provisions), 792 MR 4 (choice of Court), 786 8 (designation of the applicable for the purpose of a particular proceeding), 787 75 (transitional provisions), 786–7 76 (entry into force), 787 PCRPR (2016) 5 (jurisdiction in cases of dissolution or annulment), 792 7 (choice of court), 792 22 (choice of the applicable law), 793 23 (formal validity of the agreement on a choice of applicable law), 793 24 (consent and material validity), 793–4 69 (transitional provisions), 794

894  Index Rome III 5 (choice of law by the parties), 784 6 (choice of law by the parties: formal validity), 784–5 7 (choice of law by the parties: consent and material validity), 785 SR (2012) 5 (choice of court agreement), 794 7 (jurisdiction in the event of a choice of law), 794–5 22 (choice of law), 795 23 (scope of applicable law), 795–6 24 (dispositions of property upon death other than agreements as to succession), 796 25 (agreements as to succession), 796–7 27 (formal validity of dispositions of property upon death made in writing), 797 83 (transitional provisions), 798 choice of court/choice of law, judicial coordination on, 870–2 Citizens’ Rights Directive (CRD): see also discrimination on grounds of nationality, prohibition (TFEU 18); free movement of persons (TFEU 21/CRD); residence, right of (TFEU 21/CRD) legal basis (TFEU 18/TFEU 21(2)/TFEU 45/ TFEU 50/TFEU 59), 349 ‘civil matters’ as autonomous EU concept, 65 Brussels Convention 1, 75–6 public law measures as, 65 spousal support, claim for as, 75–6 civil procedure regulation, basis for: see AFSJ civil status records, lack of/absence of cooperation mechanism, 810 common immigration policy (TFEU 79), 349 compatibility clauses: see maintenance conventions/EU legislative instruments, interrelationship connecting factors, choice of: see autonomy of the parties; cultural issues; habitual residence (other than children), as connecting factor; nationality as a connecting factor/applicable law consolidation of proceedings: see also autonomy of the parties (choice of court/ jurisdiction); choice of court/choice of law clauses, provisions on (text); EUFam’s Policy Guidelines; model clauses (choice of law/court); transfer of jurisdiction (Brussels IIa 15) (forum non conveniens)

Note: ‘coordination’ is the preferred terminology when discussing EUFam’s Policy Guidelines, ‘harmonisation’ in relation to forum/ius and ‘unification’ in discussing the model guidelines. This parallel language has been retained in the index. autonomy of the parties and, 593 courts’ practice, 186 EUFam’s Policy Guidelines, assessment, 801–2 choice of court, 803 jurisdictional grounds, 801–2 parental responsibility, 806–8 spousal disputes, 801 summary of problems, 803 EUFam’s Policy Guidelines, recommendations amendments to Brussels IIa, 803–8 transfer of jurisdiction as solution to difficulties, 187–8, 805–6, 807 Good Practice Seminar discussion of, 593 parental responsibility and, 607 proscription (MR 3(c)), 167, 184 cooperation mechanisms: see also JCCM (TFEU 81); judicial communication/ dialogue; Judicial Coordination, EUFam’s Model Protocol Central Authorities (Brussels IIa 55), 403–4, 582 Central Authorities (MR 50(1)(a)), 416, 417–18, 423, 582, 618–19 importance/inadequacy of, 433, 809–10 judicial cooperation in civil matters (TFEU 81): see JCCM (TFEU 81) ‘court’, definition/classification as, SR 3(2), 143n44, 190 Croatia Brussels IIa, temporal scope in Croatia (Brussels IIa 64), 433, 629 child abduction, problems, 440–1 child’s right to be heard (Brussels IIa 23(b)/ 42(2)(a)), conformity of Croatian law (old/new Family Act), 438–40 Civil Procedure Act, 432 compliance with EU Regulations, obstacles, translation problems, 214, 458, 618, 619–20 enhanced cooperation, 103, 106–7, 109, 113, 431 EUFam’s project in, 429–50 cases included in, 429–30 reasons for inclusion, 420 summary of conclusions from, 457–8 EUFam’s project in, issues addressed by Brussels IIa 19 (lis pendens), 210–11, 455–6 child’s right to be heard, 438–40 divorce jurisdiction, 434–5 family matters (applicable law), 448–9

Index  895 lis pendens, 210–11 maintenance obligations, 87, 443–8 matrimonial matters, 434–5 notaries’ jurisdiction, 190, 193, 449–50 parental responsibility jurisdiction, 436–43 return of the child, 441–2, 449–55 succession regime, 190, 193, 216 transfer of jurisdiction (Brussels IIa 15), 442–3 Family Act (2003/2015), 432, 438–40 family matters applicable law (MR 15/HMP 1(1))/difficulties of interpretation, 447–8 EU regulation of (EU PIL), national courts’ reluctance to engage with, 435, 445, 448–9, 456, 457–9 PILA 2017’s approach to, 458–9 habitual residence, 123 international family law and succession law applicable in Croatia (treaties, EU Regulations, legislation), 431–3 judicial organization, 432–3 lis pendens (Brussels IIa 19/SR), 210–11, 212–13, 216, 455–6 maintenance obligations, international instruments applicable to Croatia, 444 matrimonial matters (jurisdiction) legal separation and marriage annulment (Brussels IIa 3–7), interpretation difficulties, 435 misapplication of Brussels IIa 3(1)(3), 434–5 preference for PILA provisions against Brussels IIa/CJEU jurisprudence, 434–5 MR (applicability) date of (1 July 2011), 82 direct applicability, 445 MR (jurisdiction) ancillary proceedings, MR 3(c) vs MR 3(d), 446 application of PILA instead of MR, 445 examples of misapplication of MR 3 (jurisdiction), 443, 445–8 interrelationship between rules on national and international jurisdiction (MR 3(a) 3(b)), 446–7 negative declaratory actions, 447–8 notaries’ role, 190, 193, 449–50, 453, 624 parental responsibility (jurisdiction), difficulties Brussels IIa–HCPC interface (Brussels IIa 61/ HCPC 52(1)), 436–7 ‘court’ (Brussels IIa 2(1)), 437–8 delimitation with national legislation, 437–8 overlapping sources of jurisdiction/gaps, difficulty of handling, 436

PILA (1982) 61 (applicable law), 435 71(1) (jurisdiction over immovable properties of Croatian nationals), 452 misapplication of, 458 PILA (2017) improvements, 458–9 PRA and, 438–9 return of the child (recognition and enforcement of court order) (Brussels IIa 42/HCAC), misapplication of the rules, 441–2 same-sex marriage, 77–8 Schengen area and, 350 SR, difficulties ‘cross-border’ succession matters, absence of definition, 450–1 ECS (SR 62–73)/domestic certificates (applicability of SR 4), 454–5, 810 habitual residence, difficulty of establishing, 451–4 notaries’ jurisdiction, 190, 193, 449–50, 592, 810 Succession Act 2003 (Act implementing the SR) incompatibility with SR 14, 449–51 summary of provisions, 449–50 transfer to a court better placed to hear the case (Brussels IIa 15), 442–3 cross-border situation, definition/relevance, 235–6 ‘cross-border implications’ (MPRR/PCRPR Recital 90)/‘situations involving a conflict of laws’ (Rome III 1(1)), 235–6 cultural issues: see also national identity, respect for (TEU 4(2)) Brexit, implications difficulty of negotiating EU–UK bilateral treaty, 21 reversion of UK to national conflicts rules, 21 conflict between universal choice of law rules and law of the forum, mechanisms for handling: see also public policy exception; Rome III (divorce) application of law of the forum as substitute (Rome III 10/Recital 24), 18–20 denial of jurisdiction (MPRR/PCRPR 9), 16–17 denial of jurisdiction (Rome III 13), 57n29 overriding mandatory provisions (MPRR/ PCRPR 30(2)), 16 public policy exception, 16, 18–20 connecting factors, choice as disregard/ misunderstanding of Commission’s failure to acknowledge (Brussels IIa Proposal), 13–14 focus on avoidance of foreign law, 13–14, 146, 552

896  Index handling of Islam marriage/divorce, 15, 18–20 HR (rejection of cultural identity argument as ‘non-decisive’), 14–15, 130 Sahyouni, 15 universal application of choice of law rules as solution, 13–14 cultural conflicts as a growing phenomenon, 20–1 cultural identity of the individual definition, 12–13 fragmentation of/enracinement dynamique, 13 nationality, link with, 12–13 nationality vs habitual residence, 11–12, 13 vs cultural identity of the Member State, 9, 12–13 ‘culture’ (WCCP), 3–4 influence of culture on national approaches to PIL easy acceptance of foreign law and courts vs preference for the forum, 5 recognition of the equivalence of legal systems/cultural relativisation, 5, 16 plurality and diversity of cultures/plurality and diversity of family concepts and family law, 3–4 changes in national laws to reflect, 4 EU PIL post-Amsterdam/AFSJ initiatives, 4 EU substantive family law, limited harmonisation of, 4 as European/global phenomenon, 4 national PIL legislation, 4 custody rights autonomous meaning (Brussels IIa 2(9)), 65–6, 602 breach of rules/abduction distinguished, 360, 492–3 Brussels IIa 11, proposal for changes to (Brussels IIter Proposal 21), 602–4, 821–2 Central Authorities’ role (HCAC/ECCC/Brussels IIa), 399–402 exequatur, effect of abolition, 606 free movement, potential problems, 358, 360, 369 modification of custody agreement (Brussels IIa 12(3)), autonomous nature of proceedings, 476–9 parental responsibility and, 65, 66–8, 267–8 return of the child decisions, interplay with, 492–3, 510–11, 527, 602–4, 607 complexity and cost of proceedings including (Brussels IIter Proposal), 602 override mechanism (Povse) (Brussels IIter Proposal 26), 318–19, 602–3, 613

rights of access, entitlement to (Valchev), 66–7 shared custody (Brussels IIa 2(9)), 358, 548–9 Cyprus Brussels I Regulation, date of applicability, 83 enhanced cooperation, participation in, 84–5, 109 foreign law, 276, 280, 284 HDC and, 337 MPRR/PCRPR and, 109, 113, 645, 652 Schengen area and, 350 Czech Republic best interests of the child, 477–8 Civil Procedure Code by article 11(3) (jurisdiction: close links), 470 85 (court of general jurisdiction), 469–70 193a-193e (return of the child)/mirror orders, 471 Civil Procedure Code/Special Court Proceedings Act 2013, 465–6 enhanced cooperation and, 463 EU PIL, national courts’ reluctance to engage with, 467–8, 486 EUFam’s project in, 461–86 cases included in, 462 reasons for inclusion, 461–2, 521–2 summary of conclusions from, 486 EUFam’s project in, issues addressed by, 467–8 child abduction/return of the child, 470–5 habitual residence as a ground for jurisdiction/KS, 468–9 lis pendens/coordination with third States, 481–3 misapplication of MR/HCPC, 484–6 nationality as a ground for jurisdiction, 469–70 parental responsibility (jurisdiction), 435–43 prorogation of jurisdiction, 476–9 provisional and protective measures (Brussels IIa 20), 483 residual jurisdiction, 480 return of the child order, recognition and enforcement, 483–4 transfer of jurisdiction (Brussels IIa 15), 480–1 family law, recodification (Civil Code 655–975), 465 ECtHR jurisprudence and, 465 foreign law and, 275, 279, 280 habitual residence of a child, relevant factors, 477 habitual residence, problems relating to court’s failure to give reasons for decision, 468 inconsistency of terminology, 464n14 incorrect assessment of the relevant factors, 468–9

Index  897 HCPC, examples of misapplication, 484–5 HMP, failure to apply (MR 15), 486 international family law and succession law applicable in the Czech Republic, 462–6 primacy of treaties/EU Regulations (PILA 2)/examples, 463–4 lis pendens (Brussels IIa 19) coordination with third states (KS), 482–3 provisional measures (Brussels IIa 20), relationship with, 481–2 MR, 443–8 misapplication of (KS), 485–6 nationality as a ground for jurisdiction (Brussels 3(1)(b)), 469–70 PILA 2012 by article 2 (primacy of international treaties and EU Regulations), 463–4 47 (dissolution, annulment and validity of marriage: applicable law), 465 47 (spouses’ maintenance), 464 48(1) (spouses’ personal relations: applicable law), 464–5 49 (spouses’ personal relations: applicable law), 463 49(2) (spouses’ maintenance: applicable law), 464 50 (divorce: applicable law), 463 50(4) (divorced spouses’ maintenance: applicable law), 464 56 (child maintenance), 464 56(1) (maintenance and parental responsibility: jurisdiction), 465 57(1) (minors maintenance: applicable law), 464 74–9 (succession law), 465 prorogation of jurisdiction (Brussels IIa 12) ‘all the parties to the proceedings’ (Brussels IIa 12(3)(b)) (Saponaro), 478 best interests of the child, 477–8 court’s right to raise ex officio, 476–7 KS, 475 transfer to a jurisdiction in which there were no related proceedings pending (Brussels II 12(3) (KS)), 78–9 provisional and protective measures (Brussels IIa 20) (KS), 483 residual jurisdiction (Brussels IIa 14), 480 return of the child (‘adequate arrangements’ (Brussels IIa 11(4)/HCAC 13(1))), 470–5 arrangements as protection specifically against grave risk requirement, 472–3 Brussels IIter 27, relevance, 473–5 KS, 470, 473, 475

return of the child (Brussels IIa/HCPA), establishment of habitual residence (Brussels IIa 11) as impediment to compliance with return order, 483–4 Special Court Proceedings Act 2013 by article 20 (court’s right to raise matters ex officio), 477 383 (territorial jurisdiction), 469–70 489(2) (adequate arrangements: Brussel IIa 11(4)) as basis, 471, 472–5 Special Court Proceedings Act 2013–Civil Procedure Court, relationship, 465 spousal maintenance, 76, 86 succession, 99–100 transfer of jurisdiction (Brussels IIa 15) failure to meet Brussels IIa 15(3)(b) and (e) conditions (KS), 480 transfer by a non-competent court (KS), 480–1 denial of justice forum necessitatis and, 155, 183, 325, 330, 382n49, 820 proof of foreign law considerations, 278 Denmark Brussels IIa, non-applicability, 61, 261, 629, 670 divorce rates, 53, 543 EU–Denmark Agreement (2013), 80–1, 181, 261 exequatur, continuing requirement for, 306, 307 foreign law, 275, 277, 279 HCPC and, 336n10 HDC and, 337 HMP, absence of ratification, 336n10, 342 HMP, non-applicability, 73, 181, 185, 244, 306, 644 JCCM and, 10, 107, 113, 206 MPRR/PCRPR and, 107 MR and, 80–1, 181, 385 registered partnerships, 110n6 same-sex marriage, 53n4, 77, 550 SR, non-applicability, 93, 657, 835–6 discrimination on grounds of nationality, prohibition (TFEU 18): see also free movement of persons (TFEU 21/CRD); Islamic divorce; nationality dependence on the individual’s willingness to challenge, 351 direct discrimination (right to same treatment as citizen of the host state), 351 as a general principle, 12, 351 indirect discrimination (discriminatory effect of the application of a neutral rule), 351

898  Index national sources of/obstacle to freedom of movement test, 351 legislation, administrative practices, judicial decisions, 351 matters within national competence, 351 nationality as a connecting factor and, 12, 151, 158 divorce/separation/annulment proceedings (Brussels IIa provisions), 54–5: see also forum necessitatis, divorce, separation and annulment (Brussels IIa 6–7); Islamic divorce; private divorce; residence, right of (TFEU 21/CRD); Rome III (divorce); same-sex marriage absence of choice of court provision, difficulties caused by (Brussels IIa/Brussels IIter), 184, 674–5, 678, 680–1, 687, 738, 739, 744, 753, 757–8 absence of choice of court provision/EUFam’s Policy Guidelines, 815–17 exclusivity issues, 816–17 forum/ius harmony/adoption of Rome III/ SR/MR/MPRR solution, 816 recommended approach, 815–16 timing of choice, 816 ‘dissolution of matrimonial ties’ (exclusion of separation), 366n76, 505–6 EU’s compliance with obligations to non-member states, 336–9 exclusion of grounds for divorce and property consequences of (Recital 8), conflict with national law, 54, 505–6, 549–50 forum/ius harmonisation: see Rome III (divorce) (forum/ius harmonisation) HDC (1970) EU competence in respect of, 338 post-Brexit relevance, 337–8 status vis-à-vis EU, 337–9 misapplication, 434–5, 524–5 non matrimonium/matrimonium nullum, applicability, 525 prorogation of jurisdiction (Brussels IIa 12)/ timing of ‘unequivocal acceptance’ (Brussels IIa 12(1)(b)), 253–5 ‘religious’ proceedings, 55, 814 E-justice Portal, role, 403, 409, 423–4, 844, 845, 847, 849 ECHR: see EU law/ECHR, potential for conflict Egypt, divorce in, 40–1 EJN Civil Central Authorities and (Brussels IIa 54) annual meetings, 409–10 bilateral meetings to discuss problems raised by Member States, 410

cooperation, 403 evaluation, 423–4 judicial networks, 410–12 standardised application forms in languages of Member States, 409–10 statistical reports, 410 working groups, 409–10 costs/financial support, 601 E-justice Portal, role, 403, 409, 423–4, 844, 845, 847, 849 establishment (Decision No 2001/470/EC of 28 May 2001 amended by Decision No 568/2009/EC of 18 June 2009), 844 incorporation of EJN Civil in the e-Justice Portal, 409 available information, 409 limited use of, 810 promotion of, need for, 810 shortcomings/need for improvement, 274, 282–3, 809 EJN-NCP means and language of communication with judges, 851–2 membership/use of, 849, 850 role, 849 enforcement of decisions: see recognition of decisions of Member State courts enhanced cooperation (TEU 20/TFEU 326–34) explanation of process/effect, 6–7, 10 Member States not participating in, need to find ways of addressing, 812 Member States participating in, 84–5, 103, 106–7, 109, 113, 259 non-participating Member States/reasons for, 107, 113 enhanced cooperation (TEU 20/TFEU 326–34), examples of resort to Brussels IIa, 6, 236, 738, 757 MPRR, 6, 9–10, 17–18, 103, 106, 108, 233, 253, 336 PCRPR, 6, 103, 106, 109, 113–14, 233, 336 Rome III, 9n27, 16–17, 18, 19–20, 106, 113, 172, 253, 259, 293–5, 297–8, 431, 463, 522, 633, 634 equal treatment: see discrimination on grounds of nationality, prohibition (TFEU 18) Estonia Brussels I Regulation, date of applicability, 83 foreign law, 275, 282, 285 habitual residence as connecting factor in succession matters, 133 EU law, primacy absence of jurisdiction ratione personae provisions, effect, 62, 504–5, 550–1, 822

Index  899 automaticity in the presence of an international element (UD v XB), 62, 144, 504–5, 524–5 Brussels IIA 3 vs domestic law on lis pendens, 515 custody rights, 66 harmonisation of EU PIL, dependence on, 50, 51 legislative provision for, 463–4, 518, 522–4, 539–40 protection pf EU rights, 7–8 public policy exception as risk to, 292–3 Rome III, uncertainties, 50, 553 SR applicable law/jurisdiction provisions and, 148–9 EU law/ECHR, potential for conflict: see also child abduction (ECHR 8/Brussels II/ Brussels IIa) Bosphorus presumption (equivalence of EU and ECHR human rights processes), 379, 381–2 MR procedures as effective/more effective protection of maintenance obligations Battista, 372–3 Orel, 373 mutual trust principle: see mutual trust principle, ECHR, relevance under Opinion 2/13, 380–3 Regulations involved (MR, Brussels II, Brussels IIa), 372 EU obligations to third countries, compliance with cavalier attitude, 334 summary, 342–3 EU obligations to third countries, compliance with (Brussels IIa/Brussels IIter) child abduction HCAC as governing document, 340–2 Opinion 1/13, 340 divorce, 336–9 Brussels Ia 33 and 34 compared, 336 HDC (1970), role, 337–9 manipulation of Brussels IIa divorce jurisdiction provisions to cover ancillary matters, 336–7 parental responsibility Brussels IIa 61 restriction of HCPC 8 and 9 transfer provisions, 339 Brussels IIter 97(2) rectification of transfer problem, 339 post-Brexit, 341–2 EU obligations to third countries, compliance with (maintenance) HMC 18(2) exceptions to HMC 18(1) rule on transfer of proceedings, interpretation of, 334–5

Lugano Convention obligations (2007) and, 333–4 EU derogation from LC 23 in respect of obligations to a child under 18, 333–4 MR 4(4) as override of LC 27 (lis pendens), 334 transfer of jurisdiction absence of provision for (MR), 187–8, 332–3, 807–8 Brussels Ia 33–4 formula as solution, 333 HMC 22(c) and (d) obligations, 332–3 EU PIL, overview applicability of conventions in situations not involving a conflict of laws, 236, 269, 557–8 applicable law choice of applicable law (MPRR/PCRPR/ Rome III provisions), 235–6 MR 15/HMP 1(1), 448–9 in states with multiple systems of law (HCPC 47–8), 10, 269, 545–6 coordination, attempts to address absence from Brussels IIter, 235 MPRR/PCRPR provisions on jurisdiction/ avoidance of parallel proceedings, 235 cross-border situations, definition/relevance, 235–6 cultural issues, 3–21 existing treaties, effect on, 9–10 harmonisation of concepts/terminology/ adoption of autonomous concepts by analogy apparent identity of EU legislative texts confounded by differences in application, 237 counter-effect of attempts to harmonise conflicting concepts, 236 ‘maintenance obligation’, 78, 79, 181, 236 JCCM, as a component of, 163 national courts’ engagement/compliance with EU PIL/international conventions, 435, 445, 448–9, 456, 457–9, 467–8, 486, 504, 519–20, 525–8, 545–6, 550–1, 555 absence/infrequency of references to CJEU, 55 objectives: see also cultural issues; national identity, respect for (TEU 4(2)) balance between EU integration and national identity as fundamental task, 6–9 free movement of judicial decisions, 10–11, 180, 228 free movement of persons (Brussels IIa Recital 1), 8–9, 12, 109, 136, 146, 154, 156, 164, 188, 234–5, 245, 305–6

900  Index legal certainty and predictability, 11, 18, 102, 136n12, 179, 218–19, 234, 247–8, 449, 592–3, 627 party autonomy, 234 regulatory history, 233: see also lis pendens (background); MPRR (2016)/PCRPR (2016), negotiating history; parallel proceedings, problems/risks; PCRPR (2016) regulations currently in force/future possibilities, 4, 233–5 EU PIL, fragmentation/overlap, gaps and contradictions Brussels IIa 6 and 7, confused relationship, 588–9 failure of Brussels IIter Proposal to resolve, 169 Central Authorities (Brussels IIa/HCAC/ HCPC), 408 child abduction (ECHR 8/Brussels II/ Brussels IIa/HCAC), failure to realise that the holder of a parental responsibility may be a natural or legal person (Brussels IIa 2(7)/HCAC 3(a)), 64–5, 441 child’s right to be heard (Brussels IIa 23(b)), 308–10, 438–40 issue of certificate (Brussels 42(2)(a)), variety of national approaches, 228–9, 438–40, 621–2 collection and exchange of information on the situation of the child (Brussels IIa 55(a)), 404 divorce/related proceedings courts’ confused application of Brussels 3(1)(b)/CJEU jurisprudence, 434–5 Rome III 5 (choice of applicable law), 596 as growing problem, 555 internal conflict of laws, applicability, 236, 269, 557–8 jurisdiction provisions (Brussels IIa/MR/HMP), 184–6, 188, 241, 801–2 divorce (Brussels IIa 3(1)(a))/parental responsibility (Brussels IIa 8), 539 as impediment to informed choice, 598 maintenance obligations Brussels IIa/MR/SR, 69–70, 801 Good Practice Seminar discussion of, 614–15 matrimonial matters Brussels IIa 6 and 7 (personal scope of application) (Sundelind/forum necessitatis), 588–9

grounds of jurisdiction as alternatives/lack of a hierarchy, 153–4, 166–7, 185, 203, 592–3, 803–4 private divorce/same-sex marriage (absence of definition of marriage), 588–9 matrimonial property/succession law, 23–5 MR 3 (applicable law), misapplication, 444, 445–6, 549 multiplicity of fora, 153–4, 799–800, 803 parental responsibility, 435–43: see also parental responsibility Brussels IIa/HCPC, 234, 601 interrelationship between national and EU procedural provisions, 437–8 lawful removal of a child, confusion over the rules (Gogova)/risk of breach of Brussels IIa 8, 440–1 return of the child, 602–5 review of instruments providing for, 61–70 parties’ autonomy/choice of court (Brussels IIa 12/MR 4(3)), 184, 803 provisional measures (Brussels IIa 20), 320–1, 511–12 recognition and enforcement regimes (Brussels IIa/MR), 305–22 Brussels IIa 23(e) and (f) (irreconcilability)/ Brussels IIa 19 (lis pendens), 314–15 exequatur practice, 315–16, 606–7 provisional measures (Brussels IIa 20), 319–21 public policy exception, 310–13 return of the child (Brussels IIa 42(2)(a)/ HCAC 13), 318–19 varying methods of enforcement, 316–18 summary of instruments considered, 233–5 summary of problems, 241–2 transfer of jurisdiction (Brussels IIa 61/ HCPC 52(1)), 436–7, 442–3, 605–6 unity of proceedings in family matters, particular impact of fragmentation on, 437–8, 538–40, 546–7 EU PIL, fragmentation/overlap, gaps and contradiction, addressing the problem cooperation, between all actors, 520 coordination of choice of law and jurisdiction rules, 595–6 EU PIL knowledge base, 520 EU/national guidelines, 520 EU/national handbooks, 408, 520 EU/national model forms, 520 Explanatory Reports, 408 Guides to Good Practice, 408 national/transnational training, 412–13

Index  901 EUFam: see Croatia; Czech Republic; EU PIL, fragmentation/overlap, gaps and contradiction; EUFam’s Policy Guidelines; EUFam’s Project Questionnaire (2017); Germany; Good Practices Seminar (May 2017); Italy; Judicial Coordination, EUFam’s Model Protocol; lis pendens (national practice); Slovakia; Spain; SR (2012) (habitual residence), determination of habitual residence, criteria/ methodology (EUFam’s practice) EUFam’s Policy Guidelines Brussels IIa autonomy of the parties: see also divorce/ separation/annulment proceedings (Brussels IIa provisions), absence of choice of court provision/EUFam’s Policy Guidelines child’s right to be heard, 823–4: see also child’s right to be heard forum necessitatis, 820–1: see also forum necessitatis; parallel proceedings, problems/risks HCPC, Member States’ relationship with, 831–2: see also HCPC (1996) (EU/ Member States’ relationship with) lis pendens, 817–20: see also lis pendens; perpetuatio fori one appeal limit, 827–8: see also child abduction parental responsibility (scope of application), 821–2: see also parental responsibility (Brussels IIa) party autonomy, 815–17: see also autonomy of the parties (choice of court/ jurisdiction), EUFam’s Policy Guidelines personal scope of jurisdiction (matrimonial matters) (Brussels IIa 6–7), 814–15: see also forum necessitatis, divorce, legal separation and marriage annulment (Brussels IIa 6–7) private divorce, 813–14: see also private divorce prorogation of jurisdiction, 824–6: see also prorogation of jurisdiction (Brussels IIa 12) same-sex marriages/registered partnerships, 812–13: see also same-sex marriage transfer of jurisdiction, 826–7: see also transfer of jurisdiction (Brussels IIa 15) consolidation of proceedings, 801–8: see also consolidation of proceedings

forum/ius harmonisation, 800–1: see also applicable law/jurisdiction, harmonisation of rules on (forum/ius harmony) judicial training and judicial administrative cooperation, 809–11: see also cooperation mechanisms; Judicial Coordination, EUFam’s Model Protocol mediation framework, mediation, 828–30: see also mediation MR (2009) party autonomy (non-applicability of MR 4(3) to a child under 18/ recommended adoption of Brussels IIa 12 rule), 833–4 public authorities’ creditor status, recommendation for amendment, 834 proof of foreign law, 809: see also foreign law Rome III informed choice, 832–3: see also Rome III (divorce), informed choice (Rome III Recital 18) same-sex marriage/registered partnerships, 832 SR (2012): see also SR (2012) applicable law (choice), 839–40 applicable law (scope) (property and family vs succession law), 840–1 jurisdiction (habitual residence), 838 jurisdiction (national certificate of residence), 839 scope of application (UK, Irish and Danish citizens), 836 temporal scope and transitional provisions (SR 83(2), AR 83(3) and SR 83(4)), 835–6 EUFam’s Project questionnaire (2017) analysis of results low level of recognition and enforcement decisions/reasons for, 585 low response rate/reasons for, 584 need for improvements to achieve effet utile target, 585 public policy exception, 585–6 service of documents/failure to use Service Regulation, 585 useful of tools on applicable law, 584–5 useful of tools on jurisdiction, 584–5 contents and methodology, 562 dissemination, 562–5 genesis, 561

902  Index participation by country, 565–6 participation by profession, 565–6 question asked (residual application of national PIL) with participation rates and responses, 583–4 questions asked (applicable law matters) with participation rates and responses foreign law, method of determining, 576 foreign law, refusal to apply, 576–7 Rome III 5(3) (choice-of-law agreements, frequency), 576 questions asked (cooperation between Central Authority matters) with participation rates and responses Brussels IIa provisions, usefulness, 582 MR provisions, usefulness, 582 questions asked (interrelations between EU Regulations and international conventions) with participation rates and responses, experience of practical difficulty, 582–3 questions asked (jurisdiction matters) with participation rates and responses abusive litigation tactics, risk of, 574 Brussels IIa 3 (claimant-friendliness/forum shopping), 566–7 Brussels IIa 11 (child abduction: compatibility with HCAC), 567 Brussels IIa 11(4)/HCAC 13(b) (return of child if ‘adequate arrangements’ have been made), 567–8 Brussels IIa 11(6)-(8)/HCAC 13 (non-return orders), 568 Brussels IIa 12 (prorogation of jurisdiction: application), 568–9 Brussels IIa 15 (transfer of jurisdiction: application), 569 Brussels IIa 15 (transfer of jurisdiction: possibility of extension to matrimonial matters), 570 Brussels IIa 15(6) (transfer of jurisdiction: use of cooperation), 569 Brussels IIa (desirability of a forum necessitatis clause), 571–2 habitual residence, method of ascertainment, 572 habitual residence (need for specific interpretation of SR requirement), 572–3 lis pendens, practice in respect of non-Member State courts, 573 MR 3 (grounds of jurisdiction: application), 570 MR 3(c) and 3(d) (interplay between (A v B)), 571

MR 4 (choice of court agreements: frequency), 573–4 MR Recital 45 (sufficiency of MR measures to achieve objectives), 572 questions asked (recognition and enforcement matters) with participation rates and responses Brussels IIa provisions on, frequency of resort to, 577 Brussels IIa 22 (grounds for non-recognition, use of), 577–8 Brussels IIa 22(a)/Brussels 23(a) (public policy exception, possibility of overuse), 578 Brussels IIa 23 (grounds for non-recognition, use of), 578 Brussels IIa 23(b) (child’s right to be heard, possible EU harmonisation), 579 Brussels IIa 41 (certified judgment: frequency of enforcement on basis of), 579 Brussels IIa 41 (certified judgment: use of standard form), 579 Brussels IIa provisions, correct application of, 580 Brussels IIa provisions, frequency of application, 580 MR 24 (grounds for non-recognition: use of), 581 questions asked, conclusions applicable law matters, 577 cooperation between Central Authorities matters, 882 interrelations between EU Regulations and international conventions, 583 jurisdictional matters, 574–5 recognition and enforcement matters, 581 recommendations for action, 586 European Certificate of Succession (ECS): see SR (2012) (jurisdiction (SR 4–19)), ECS (SR 62–73)/domestic certificates (applicability of SR 4) European civil procedure, basis for: see AFSJ European Convention on the Exercise of Children’s Rights (1996) (ECECR): see also parental responsibility objective (ECECR 1(3)) (procedural rights affecting parental responsibility), 62 European Enforcement Order Regulation (2004) (EEOR): see maintenance conventions/ EU legislative instruments, interrelationship European Judicial Atlas, 409 European Judicial Training Network (EJTN), 412 European Parliament Mediator, 610–11 exceptio rei judicatae: see res judicata

Index  903 exequatur overview, 305–6, 321, 498 abolition for decisions/agreements in Member States party to the HMP (MR 17), 306, 619–20 impact on custody cases, 606 Brussels IIter Proposal (proposed abandonment of requirement) evaluation, 315–16, 321 Good Practices Seminar discussion of, 606–7 replacement by Brussels Ia-type regime, 607 resistance to, 307–8, 607 examples of usefulness, 315–16 enforcement of decisions, 318 requirement for decisions/agreements in Member States not party to the HMP (MR 23–38), 306 in Member States party to the HMP in respect of decisions in proceedings instituted before 18 June 2011, 306 Exercise of Children’s Rights (1996) (ECECR) scope and object (ECECR 1) family proceedings involving the exercise of parental responsibility (ECECR 1(3)), 63 grant to children of procedural rights and facilitate their exercise (ECECR 1(2)), 63 expulsion, protection against (CRD 28), best interests of the child and (CRD 28(3b)), 369 family and private life (ECHR 8), same-sex marriage and, 58 family-related migration overview, 23–6, 30 classification of migrants/stratification of rights, 27–8 culturally incompatible marriage practices, concerns about, 28–9: see also Islamic divorce as increasing phenomenon, 27 intrusive testing techniques, 29 marriage migration, 27 selective migration policies/management and, 27 temporary migration as preferred solution to problem of necessary unskilled migrants, 26, 29 as unsolicited/unwanted migration, 27 family reunification citizen’s right to equality of treatment in state of origin and, 351–2, 362–3 differential rights to, 27–8, 77–8 Family Reunification Directive, 362n56, 369 as a human right, 27

federal/quasi-federal states Central Authorities in, 401–2 HCPC, 47–8, 269 MPRR/PCRPR, 33–5, 10 Rome III, 14–16, 10, 283, 601 Spain and, 545–6, 558, 624 SR, 36, 624 variations in EU PIL instruments, 269 Finland foreign law, 275, 277, 279 registered partnerships, 110n6 same-sex marriage, 53n4 foreign law: see foreign law, application; foreign law, problems; foreign law, proof of foreign law, application overview as a leap in the dark, 288 Member States/CJEU attitudes to the role of foreign law, 5, 13–14, 146, 551–3 public policy exception, role, 288–9: see also public policy exception application by non-judicial authorities, 285–6 iura non novit curia and factors to be taken into account, 280 factual nature of foreign law and, 280 hybrid nature of foreign law and, 280 legal nature of foreign law and, 280 in Spain, 277–8, 280 nature of foreign law (national approaches to) factual nature, 275 hybrid nature, 276–7 legal nature, 274–6 reasons for choosing, 601 review of decisions involving, 284–5 grounds, 285 role of judge/parties (factual nature of foreign law) content, 281 pleading, dependence of application on parties’ playing an active role, 277, 278 role of judge/parties (hybrid nature of the foreign law), pleading, 279 role of judge/parties (legal nature of foreign law) (content), 281 content, 281 role of judge/parties (legal nature of foreign law) (pleading) dependence on availability of the foreign law, 277, 279 dependence on willingness of the parties, 279 judge’s obligation to invoke foreign law ex officio, 279

904  Index parties’ freedom from need to plead or prove content, 277, 279 treatment as fact, parties’ duty in case of, 279 foreign law, problems application as law of the forum vs foreign law, 284 costs, 283–4, 600, 601 difficulty of determining foreign law/ abandonment of the search/lex fori as default, 284, 809 diversity of national practice, 809 judge’s refusal to accept foreign law, 284 lack of clear/common rules/effect, 273–4 HCCH’s role, 274 rarity/absence of reference to in EU texts, 272–3 Rome III, 274, 278, 551–3 shortcomings of EJN, 274, 282–3, 809 foreign law, problems, amelioration/ recommended improvements adequate procedural instruments, 274 availability of documentation including the foreign law, 278 creation of database particularly for African and Asian law, 09 EUFam’s Policy Guidelines, 809 harmonisation of conflicts rules, 274 improvement of the EJN’s effectiveness, 274, 809 increasing adoption of lex fori/habitual residence connections, 228, 392–3, 558 judicial dialogue/judicial cooperation, 278, 558 mandatory application of conflicts rules, 274, 809 simplification of proof, 278 foreign law, proof of mandatory conflict rules/legal nature of foreign law and inactivity of the parties, consequences, 277–8 judge’s right/obligation to invoke foreign law ex officio, 277–8, 279 parties’ freedom from need to plead or prove content, 277, 279 means of proof EJN (Rome III Recital 14), usefulness, 282–3, 600 ex officio determination by the state authorities (provisions of EU Regulations), 282–3 expert evidence, 282 judges’ own knowledge, 282, 600 legislative provision for, 280–1 parties’ assistance, 282

forum necessitatis, 325–30 definition/characteristics, 17n50, 325–6 avoidance of disadvantages of forum non conveniens litigation, 325–6 denial of justice considerations, 325 as exceptional jurisdiction, 326 ‘necessity’ as last resort, 326 as residual jurisdiction, 326 universal civil jurisdiction distinguished, 327 denial of justice and, 155, 183, 325, 330, 382n49, 820 discretionary nature/need for judicial caution, 326 divorce, separation and annulment (Brussels IIa 6–7) difficulties of interpreting Brussels IIa 6 and 7, 167–70, 435, 503–4, 588–9, 814–15 EUFam’s Policy Guidelines, 814–15 omission of forum necessitatis clause/ desirability, 167–70, 179 unsatisfactory resolution in Brussels IIter Proposal, 169–70, 179, 815 EU PIL provisions diversity of provisions, need to address, 589 MPRR, 9, 17, 326, 815 MR, 7, 155, 183, 326, 328–9, 588–9, 815 PCRPR, 9, 17, 326, 815 SR, 11, 326, 815 judicial coordination, scope for, 874–5 jurisprudence CJEU (Sundelind), 168, 358, 435, 504–5, 588–9 ECtHR (Naït-Liman), 371 Germany (BGH, 14 October 2015, XII ZB 150/15, DET20151014), 328–9 UK (Baldwin v Baldwin (2014)), 328 necessity as ground of jurisdiction outside measures explicitly referring to it, 327 examples, 329 rarity of use (EUFam’s project), 168–9, 183, 326, 820 same-sex marriage, omission from Brussels IIa and Brussels IIter, 57–9, 820 EUFam’s Policy Guidelines, 820–1 ‘sufficient connection’ requirement, 11n35, 17n50, 326–7 ephemeral/illusory ties, exclusion, 327 examples (MPRR/PCRPR 11(2)), 11n35 examples (MR Recital 16/MR 7), 155, 327 ILA Sofia Guidelines (2012), 327n3 nationality as (MR Recital 16/MR 7), 155, 327

Index  905 forum non conveniens: see transfer of jurisdiction (Brussels IIa 15) (forum non conveniens) forum prorogatum: see prorogation of jurisdiction (Brussels IIa 12) forum selection: see applicable law/jurisdiction; autonomy of the parties (choice of court/ jurisdiction); autonomy of the parties (choice of law); choice of court/choice of law clauses, provisions on (text); model clauses (choice of law/court) forum shopping, 361–3 Brussels IIter Proposal’s failure to address problem, 217 contributory factors choice of court alternatives (Brussels IIa 3), 50, 167n31, 361, 551 choice of court alternatives (SR 7), 454 HMC rule on obligations between spouse and ex-spouses, 393–4 proof of foreign law, lack of common rules, 273 divorce post-Brexit, 338–9 lex fori and, 50 paramount value of EU PIL, whether, 50 remedies choice of applicable law (HMP 8), 394 exequatur requirement for Member States not bound by HMP, 306 forum non conveniens principle, 339 hierarchy of grounds of jurisdiction, 803–4 judicial cooperation/dialogue, 221 limit on proceedings (MR 8) and, 183 Rome III Recital, 9, 361–2 forum/ius harmony: see applicable law/ jurisdiction, harmonisation of rules on (forum/ius harmony) France Central Authorities, 401 cultural issues, response to, 4 EUFam’s project in, reasons for inclusion, 461 foreign law, 275–6, 277, 279, 280 habitual residence of adults (intention), 128–9, 190 habitual residence of children, 125, 126–7, 128 illegal residence, 130 Islamic divorce, 31–3, 37–8, 298 lis pendens (third state proceedings), 215 notaries’ role, 813, 814n49 private divorce, 15, 170, 173, 590 recognition of decisions of Member State courts, 312 registered partnerships, 110n6 same-sex marriage, 53n4 spousal maintenance, 75–6

free circulation of judgments AFSJ, as cornerstone of, 203 aids to common choice of law rules, 10–11 common jurisdictional rules, 164 common recognition and enforcement rules, 10 elimination of obstacles to the recovery of maintenance claims, 180, 200 as fifth freedom, 203 hearing of a child, difference in Member State practice as impediment to, 229–30 proposed elimination of hearing (Brussels IIter Proposal), 229–30 impediments exequatur procedure and, 307 procedural public policy, 226, 290 free movement of persons (TFEU 21/CRD) overview, 348–9: see also residence, right of (TFEU 21/CRD) choice of law autonomy of parties (Rome III Recital 15) as contribution to, 246, 356 connecting factors and, 360–4 entitlement EU citizen with respect to his/her own state, 351–2, 362–3 EU citizens and their families, 348 ‘family members’ (CRD 2 (definitions) and 3 (beneficiaries)), 349 frontier workers, 352 third country nationals (family members), 348–9 EU citizenship rights and Schengen system rights distinguished, 347–8, 349–50: see also discrimination on grounds of nationality, prohibition (TFEU 18); free movement of persons (TFEU 21/CRD); Schengen system impediments passport/ID difficulties, 369–70 restrictions on surnames, 8–9, 365 JCCM, importance, 353–5: see also JCCM (TFEU 81) jurisprudence (CJEU) (tangential treatment of free movement) Child and Family Agency, 358, 359–60 Gogova, 369–70, 440–1 Hadadi, 358–9 McB, 360 Sundelind, 358 as a key element in all the family law Regulations, 355–8 Brussels IIa parental responsibility provisions as an exception, 357–8, 359–60

906  Index common opening Recital, 355 different approaches, justification, 357 subsidiarity principle, 355–6 ‘mobility’, treatment as synonym/preference for, 347–8, 352–3, 357–8, 360, 363 relationship between free movement of persons Regulations and family law Regulations, 347, 370 risks child abduction, 368–9, 440–1 forum shopping, 361–2 frontier workers, 352 Germany child abduction, Brussels IIa 12/HCAC interplay, 492–3 child benefits in, 617 child’s right to be heard, 228–30, 308–9 recognition of a judgment, refusal in case of breach, 498–9 choice of law (Rome III 5), 494 during proceedings (Rome III 5(3)), 494 informed choice (Rome III Recital 18), difficulties, 597–8 cultural issues, response to, 4 EUFam’s project in, reasons for inclusion, 461 EUFam’s project in, issues identified in the case-law, 487–500 age of majority, 491–2 applicable law, 494–6 child abduction, 492–3 lis pendens, 210–11, 215, 493–4 private divorce, 487–9 prorogation of jurisdiction, 492 recognition and enforcement of judgments, 496–500 summary of conclusions from, 500 foreign law, 275, 279, 281, 282, 283, 284 forum necessitatis, 328–9 habitual residence of adults dependence on the centre of one’s social life, 121–2, 141, 453, 489–90 duration and circumstances of stay, 490 illegal residence and, 129 intention, 128–9, 489–90 matrimonial matters (Brussels IIa 3(1)(a)), 490 habitual residence of children, 124–5, 126, 127, 128 critical date, 126 duration, 144n51 language skills, 490 schooling, 490 social integration, 490

habitual residence (succession), 190 dependence on the centre of one’s social life, 491 global assessment of deceased person’s life prior to/at time of death, 490 interrelationship between EU regulatory instruments/within SR, 490–1, 495 Islamic marriage/divorce, 38–9, 299–300 lis pendens (Brussels IIa 16 and 19), 210–11, 493 lis pendens (third state proceedings), 215, 494 minors, classification as, 491–2 parental responsibility (jurisdiction issues), 174 perpetuatio fori, 491 private divorce (Sahyouni (CJEU/German related cases)), 10n30, 15, 35–7, 55, 172–3, 487–8, 550 ‘court’/‘procedures’ as evidence of exclusion of a unilateral declaration before a religious court, 170, 488 Oberlandesgericht München’s workaround, 488 prorogation of jurisdiction (Brussels IIa 12/MR 4 and 5), 492 provisional measures, recognition and enforcement (Brussels IIa 20) (Purrucker I), 320, 481–2, 496–8, 593–4, 609–10 recognition of decisions of Member State courts, 228–30, 311–12 exequatur, 498 recognition of decisions of Member State courts, refusal on grounds of, 499–500 failure to give child the right to be heard, 498–9 irreconcilability of decisions, 500 public policy (substantive), 499 registered partnerships, 110n6 same-sex marriage, 53n4, 77 spousal maintenance, 76 succession (excluded matters (SR 1(2))), 94–9 succession (jurisdiction), 191 domestic certificates of succession (Oberle), 93, 194–6, 621, 839 ECS, conflict of requirements with national law, 496 surnames in, 8 Good Practices Seminar (May 2017), matters addressed applicable law/jurisdiction, relationship: see also applicable law/jurisdiction, harmonisation of rules on (forum/ius harmony) choice of law clauses, 596–600: see also autonomy of the parties (choice of court/jurisdiction) forum/ius harmony, 595–6

Index  907 foreign law, application/proof, 600–1 internal conflict of law rules, 501 maintenance obligations (MR/HMP) applicable law provisions (HMC 2007/HMP), 616–17 applications for enforcement, 618–19 Brexit and, 620 Central Authorities, 618–19 child benefits, effect on child maintenance, 617–18 fragmentation problems, 614–15 jurisdictional grounds and public authorities, 615–16 post-exequatur applications for enforcement, 618–19 right to apply for a review (MR 19), 618 third State judgments, 618 matrimonial matters alternative/hierarchical grounds of jurisdiction, 592–3 ‘marriage’, absence of definition, 590 personal scope including Brussels IIa 6 and 7 relationship, 588–9 private divorce/same-sex marriage, 590–2 provisional and protective measures (Brussels IIa 20), 593–4 parental responsibility Central Authorities’ coordination, 612–13 child abduction (concentration of jurisdiction), 611–13 child abduction (one-appeal limit), 611 child’s right to be heard, 607–9 determination of applicable law (HCPC), 601 mediation, 610–11 proposal for the abolition of the exequatur, 606–7 protection of unaccompanied minors, 613–14 recommendation, 828 return of the child/custody rights, 604–5 transfer of jurisdiction (Brussels IIa 15), 605–6 SR (2012), 621–4 Good Practices Seminar (May 2017) (procedural matters): see also EU PIL, fragmentation/overlap, gaps and contradiction organisation of discussion, 587–8 participation, 587 purpose, 587 sources (national seminar reports, EUFam’s database, First Assessment Reports and Report on the Outcomes of the Questionnaire), 587–8

Greece dual habitual residence of children, 131 EUFam’s project in, reasons for inclusion, 461 foreign law, 275 habitual residence, 124 dual habitual residence, 132 Islam in/Mufti’s jurisdiction, 10 habitual residence: see habitual residence of children (CJEU jurisprudence); habitual residence of children (critical date); habitual residence of children (national courts) (factors in addition to CJEU factors); habitual residence of children (national courts) (factors in addition to CJEU factors) (non-decisive factors); residence, right of (TFEU 21/CRD); SR (2012) habitual residence of children (CJEU jurisprudence) A, 119, 121, 136n14, 137, 144, 468, 478, 525, 528 C v M, 119–20 CV v DU, 119, 129 HR, 14–15, 119, 120, 508, 525, 528 Mercredi, 119, 120, 129, 136, 144, 447, 455, 469, 477, 508, 526, 530–1 OL v PQ, 119, 120, 127, 144, 509, 528 UD v XB, 62, 144, 504–5, 508 W and V v X, 144 habitual residence of children (critical date), 125–7 change of habitual residence to a non-EU state party to the HCPC Brussels IIa/HCPC, reconciliation, 127 Brussels IIter Proposal, 7, 127 HCPC 5(2), 126, 127 divergent practice, 126–7 HCAC 4 (‘immediately before any breach of custody or access rights’), 126 habitual residence of children (factors considered by the CJEU) accordance with the law, 119–20 conditions and reasons for stay, 155n50, 528 core list, 118 duration, 144n50, 528 family environment of the other parent, 120 family move, reasons for, 155n20 family origins, 120 family and social connections [of the person on whom the infant is dependent], 120, 144n50, 528 illegal residence, 129 intention, 120, 509, 528 language skills, 120, 144n50, 528 nationality of child, 144n50, 528

908  Index non-decisive factors, 14–15, 120 objective circumstances indicating where child is staying, 120 pending appeal, 120 personal and professional ties, 508 regularity, 144n50, 528 schooling, 144n51, 477, 528 ties with parents, 120 habitual residence of children (factors considered by national courts including those in addition to CJEU factors) best interests, 124, 468 child’s relationship with peers, 124 dual habitual residence, 130–1, 525–7 national vs EU interpretation, 525–7 SR Recitals 23 and 24, 131, 148–9 extra-curricular activities, 144n51 family doctor’s location, 124, 469 family integration, 468 family and social ties, 468, 477 family’s move, reasons for, 469 grandparents’ residence, 468 health insurance, 124 hospitalisation, 124 illegal residence/problems caused by Brussels IIa 10, 129–30 independence of factors from those of parents, 124 intention, 127–9 language skills, 144, 469, 490 medical arrangements, 509 nationality of the child, 468, 477 parent’s work-place, 124 pre-schooling, 508–9 primary carer’s habitual place of residence, 525 schooling, 468, 490 social integration, 490 sports activities, 124, 144 stay with foster parents, 144 ties with parents, 120 habitual residence of children (national courts) (factors in addition to CJEU factors) (non-decisive factors) child benefits payment, 124 duration, 124–5, 144n51 pre-school attendance, 124 provisional placement of child with one of the parents, 124 registered residence, 124, 144 temporary stay, 477 habitual residence (other than children) absence of agreed definition, 136, 599 adults, absence of jurisprudence relating to, 120–1

habitual residence of children/habitual residence in social security and staff cases as possible sources, 120–1, 128–9 as autonomous concept, 14, 119–21, 131, 135, 136, 138, 149, 150, 360–1, 455, 509, 528, 599 obligation to take account of CJEU jurisprudence on other Family Regulations, 190 as basis of jurisdiction, 117–18, 133 court’s failure to give reasons for decision, 468 ‘habitual residence (other than children), Brussels I, date of application, 83 habitual residence (other than children) as connecting factor for applicable law MPRR 26/Rome III, 8, 237–9, 599–600 MR 22(1)(a), 147 SR, 118, 133, 139n28, 141, 147, 189 as connecting factor (general) advantages/reasons for choice of, 11–12 international conventions, 135 critical date (adults) Borrás (‘time of application’), 125 Brussels IIa (omission), 125 as the centre of a person’s life, 136–7 HMP 3(2) (date of change in habitual residence), 126 MPRR 6(a) (‘at the time the court is seised’) (jurisdiction), 125 MPRR 26(1)(a) (‘spouses’ first common habitual residence’) (applicable law), 125, 147 MR (omission), 126 PCRPR 6(a) (‘at the time the court is seised’), 125 Rome III 8 (‘time the court is seised’), 125 SR 4 (‘at the time of death’) (jurisdiction), 126 SR 21(1) (‘at the time of death’) (applicable law), 126, 239–41, 495 ‘habitual residence (other than children), ‘domicile’, Ireland/UK’s continued use of, 252, 312, 590n7, 780, 815n5552 habitual residence (other than children) examples of use outside the field of family law, 119, 508 factors considered by the courts: see also habitual residence of children (national courts) (factors in addition to CJEU factors) bank accounts, 123 children’s residence, 123 children’s school, 123 CJEU factors, 122 close relationship with family members in country of origin, 123 company ownership, 123

Index  909 dependence on the centre of one’s social life, 121–2, 141, 453, 489–90, 491 driver’s licence, 123 duration and circumstances of stay, 490 factual context as basis for assessment of relevant factors, 124–5 family origins: see also habitual residence of children (national courts) family and socio-economic ties, 139–40, 189, 489 immovable property ownership, 123 intention, 127–9, 525 job search, 123 legality of residence, 129, 361 loans, 123 medical care, 123 nationality, 123 negative factors, 124 personal and administrative relations, 123 place of work/study, 123, 490, 525 receipt of mail, 123 registered residence, 123 residence during major part of the year, 525 social assistance contributions, 123 tax payments, 123 translation inconsistencies as part cause, 464 visiting children in a particular country, 123 wedding location, 123 as factual/non-legalistic concept Borrás, 135n8 deliberate avoidance of definition, 121–2, 135, 136, 189 establishment ‘having regard to the context of the provision and the objective of the legislation’, 137 focus on categories of persons rather than a single rule, 137n16 as HCCH’s approach/reasons for, 121 listing of factors vs definition, 122 non-transposability of CJEU jurisprudence from one area of EU law to another (A), 121, 136n14, 137–8, 508 objective element (physical link with territory) coupled with subjective link (intention (animus manendi)), need for, 134 proximity principle and, 139, 141, 145–6, 468 registered place of residence, relevance, 361 relationship between EU regulatory instruments, 136–8 relationship with other connecting factors, 135

relevant factors, differences within Brussels IIa, 137 SR approach to/relevant factors (SR Recitals 23 and 24), 121–2, 134–5 variety of approaches to, 131–2 as factual/non-legalistic concept, jurisprudence CV v DU, 122 French Cour de Cassation, 122 German courts, 489–91 HR, 122, 525 OL v PQ, 525 mutual trust and (national courts’ obligation to respect decisions of national courts in other EU countries), 119 parties’ choice of law as means of avoiding uncertainties, 248 HCCH EU accession to (2007) (Decision 2006/719/EC), 260 amendments to HCCH allowing for accession of REIOs, 260 object and purpose, promotion of cross-border cooperation in civil and commercial matters, 260 proof of foreign law, work on, 274 Rome II 30(1) (review clause), 273 HCPC (1996) (applicable law) absence of Brussels IIa cross-reference to/ reason for, 601, 605 general rule (HCPC 15) child’s best interests and, 264, 268 child’s change of habitual residence, effect (HCPC 15(3)), 264 exceptional resort ‘to the law of another State with … a substantial connection’ (HCPC 15(2)), 264, 831 lex fori as default (HCPC 15(1)), 264 jurisprudence (CJEU) Köbler, 270 Traghetti del Mediterraneo, 270 national courts’ application of (EUFam database), 267–70 failures to establish whether the other state involved is a Contracting Party, 267 inconsistency of interpretation of applicable law rules (HCPC 15–18), 267–8 parental responsibility (HCPC 16) (attribution of responsibility) designation of the law of a non-Contracting state (HCPC 20), 266 habitual residence of the child/non-mutability (HCPC 16(1) and (3)), 265 renvoi, exception to exclusion (HCPC 21(2)), 266–7 renvoi, exclusion (HCPC 21(1)), 266

910  Index parental responsibility (HCPC 17–18) exercise of responsibility (HCPC 17) (child’s habitual residence at relevant time), 265 termination or modification (lex fori of the authority having jurisdiction under HCPC 5–10 (HCPC 18)), 266 refusal of designated law on public policy grounds including the best interests of the child (HCPC 22), 267 third party good faith transactions, protection of (HCPC 19), 266 HCPC (1996) (EU/Member States’ relationship with) accession of all Member States/implementing legislation, 259–60, 270 applicability of measures taken after entry into force of Convention for the relevant state, limitation to (HCPC 53(1)), 268–9 accession to HCPC, limitation to sovereign states (HCPC 57(1)), 260–1 acquis communautaire, as part of, 339 EU membership of HCCH (2007) and, 260 HCPC 52(1) (relationship with other international instruments)/ Brussels IIa 61 (relationship with HCPC), 261–2, 270, 436–7 applicable law (HCPC 15–18), lack of clarity/problems of application, 270–1, 517–18 Member States’ declarations on continuity with EU regulations, 261 primacy of the Regulation (Recital 92), 261–2, 263 residual clause (Brussels IIa 62(1)), 262 risk of jurisdictional gaps/Brussels IIter approach (Brussels IIter 97(2)), 262–3, 436–7 spill-over effect of interpretative judgments as aid, 263–4 material scope (exclusion of maintenance obligations (HCPC 4(e))), 484–5 as replacement for 1961 Convention, 260 summary of provisions/areas of difficulty, 831–2 EUFam’s Policy Guidelines, assessment and recommendations, 831–2 temporal scope (HCPC 53) measures pending on date of entry into force, absence of provision (HCPC 53(1)), 517 measures taken after entry into force (HCPC 53(1)), 268, 517 HMC (2007): see maintenance conventions/ EU legislative instruments, interrelationship

HMP (2007): see maintenance conventions/ EU legislative instruments, interrelationship; maintenance obligations, choice of law (HMP 7–8) Hungary Brussels I Regulation, date of applicability, 83 enhanced cooperation and, 259 foreign law, 275, 284 MPRR and, 107 PCRPR and, 113 Rome III and, 634 same sex marriage and, 113 Iceland Gothaer, 198–9 HMC, absence of ratification, 336n10, 342 MR 4(4)/LC 23 relationship, 333–4 Schengen area and, 350 IHNJ means and language of communication with judges, 851–2 membership/use of, 45n10, 433, 810, 850 promotion of, need for, 810, 845 role, 850 immigration policy (TFEU 79), 349 informed choice, need for Brussels IIter 10(4), 671n61 HMP 8(5), 645n31, 647n31, 671n61, 741n137 MPRR/PCRPR 8, 549, 654 Rome II: see Rome III (divorce), informed choice (Rome III Recital 18) International Hague Network of Judges (IHNJ): see IHNJ interpretation (EU law) aids, travaux préparatoires, 66–7 autonomous concepts: see autonomous concepts continuity of interpretation between Brussels Convention and Brussels I/LC II (parallel proceedings) (application by analogy), 206, 212, 529n40 ‘having regard to the context of the provision and the objective of the legislation’ (A), 137 judicial dialogue (UN/HCCH/EU/CoE)/ spill-over effect of interpretative judgments, 263–4 translation problems, 214, 408, 458, 464, 521, 523n12 Iran, divorce in, 38–41 Ireland domicile, use in preference to ‘habitual residence’, 252, 312, 590n7, 780, 815n5552

Index  911 foreign law, 276, 279, 280, 283, 284 forum non conveniens doctrine, 605 HMP and, 81 matrimonial property regimes, 85 MPPR and, 107 PCRPR and, 113 same-sex marriage, 53n4, 550 Schengen area and, 350 SR and, 10, 93, 134n4, 657, 835–6 UNCRC and, 608 Islamic divorce: see also divorce; private divorce EU/Member States’ attitude to cultural elements, disregard/ misunderstanding of, 42–3 lis pendens, rejection on grounds of international public policy, 37–8 mandatory nature of Rome III 10, 37 public policy exception (Rome III 12), 18–20, 298–300 recognition (Rome III 14–15/MPRR and PCRPR 14), 10, 15 treatment as discriminatory/application of law of the forum (Rome III 10/ Recital 24), 16, 18–20, 36–8 jurisprudence French courts, 31–3, 37–8 German courts, 35, 38–9 Sahyouni, 10, 15, 36, 37, 55, 172–3, 550 law and practice relating to Algeria, 41–2 changes in law to address discrimination issues, 15, 19 delegated divorce (talaq-e tawfid), 38–41 habitual residence test as means of avoiding application of, 13–14, 146, 552 Iran, 38–41 khulz‘, 41–2 Lebanon, 37–8 Morocco, 31–3 Shi’a residual clause/discretion/resort to uncodified sources/extra-judicial processes, 32, 34, 36, 37–8, 42–3 summary, 19 Syria, 33–7 Italy child abduction, mixed judicial compliance with the EU rules, 510–11 child’s right to be heard (Brussels IIa 42(2)(a)), 229, 309 divorce/separation/annulment proceedings conflict between Italian law and Brussels IIa Recital 8 (limitation of applicability), 505–6 Sundelind, 504–5

EU PIL applicable law in states with multiple systems of law (HCPC 47–8), 269 MR/Rome II, scope ration temporis, failure to apply, 507–8 national courts’ reluctance to engage with, 504 EUFam’s project in, 501–20 cases considered, 501–2 purpose/preparation of the project, 501 reasons for inclusion, 461 summary of conclusions from, 519–20 EUFam’s project, issues addressed by applicable law issues, 516–18 child abduction, 510–11 courts’ assessment of PIL issues, 504 fault-based separation, 505–6 jurisdiction matters, 508–16 lis pendens, 511–15 parental responsibility, 506–7 provisional measures, 411–12 recognition and enforcement, 518–19 summary of court’s compliance with EU PIL, 519–20 family dispute settlement, overview, 502–3 family matters and succession, law applicable between territorial units (HCPC 47–8), 269 improper application of, 269 foreign law, 275, 279, 280, 282, 283, 284 habitual residence of children, 126 courts’ familiarity with CJEU jurisprudence, 508 dual habitual residence, 132 matrimonial vs parental responsibility cases, 508–9 HCPC including temporal scope, 259–60, 268–70, 516–18 applicable law (HCPC 15–18), lack of clarity, 517–18 continuing legislative reference to HCPC 1961 as base, 260, 269, 517 inclusion of mandatory provision contrary to EU/international law, 269–70 Islamic divorce, 33, 298 judicial organisation, 503–4 jurisdiction (divorce, separation and annulment (Brussels IIa 3–7)), interpretation difficulties, 504–5 lis pendens Brussels IIA 3 vs domestic law primacy, 515 mixed judicial compliance with, 210–11 recognition of decisions in breach of the lis pendens rule (Brussels IIa 19), 210, 512–14

912  Index stay of proceedings requirement (Brussels IIa 19)/decision on jurisdiction distinguished, 515 maintenance, classification as, 74 MR (2009) (jurisdiction) ancillary proceedings, MR 3(c) vs MR 3(d)/exclusion of MR 3(a) and (b), 515–16 mixed judicial compliance, 516 parental responsibility adoption of the term (2012/2013), 63 assessment of a state of neglect (Brussels IIa 1(3)(b)), 59 assignment of family home as a protective measure (HCPI 1 and 2), 507 designation and functions of any person having charge of the child/ representing or assisting the child (Brussels IIa 1(2)(c)), 68 enforcement of penalty payment to ensure effectiveness of rights (Bohez) vs Brussels I (as a tort claim), 67, 507 private divorce, 173, 590, 591 prorogation of jurisdiction (Brussels IIa 12), 509–10 provisional and protective measures (Brussels IIa 20), 511–12 recognition of decisions of Member State courts, 226, 228, 312, 518–19 inclusion of issues not dealt with by the court of origin, treatment as a request for modification of foreign judgment, 519 res judicata, 223n2 single-sex marriages/divorce, 57–8 iura non novit curia: see foreign law, application iura non novit curia, 280 JCCM (TFEU 81) areas of competence (TFEU 81(2)), 163 Denmark’s non-participation, 10, 113 European Judicial Atlas and, 409 family law with cross-border implications, procedure for taking decisions related to (TFEU 81(3)), 163 historical development, 352–5 as part of AFSJ, 4 underlying principles access to justice (TFEU 81(2)(e)), 164 mutual recognition (TFEU 81(1)), 164 promotion of the free movement of persons, 353–5 judicial communication/dialogue Brussels IIa 15 as sole mention of, 846 EJN network judges, 410–12

lack of as impediment to EU PIL, 188 lis pendens cases as opportunity for, 220–1 judicial cooperation in civil matters having cross-border implications (TFEU 81) (JCCM): see JCCM (TFEU 81) Judicial Coordination, EUFam’s Model Protocol: see Judicial Coordination, EUFam’s Model Protocol (background); Judicial Coordination, EUFam’s Model Protocol, Annex I, Table A; Judicial Coordination, EUFam’s Model Protocol, Annex I, Table B; Judicial Coordination, EUFam’s Model Protocol, Annex II (model form for initial communication); Judicial Coordination, EUFam’s Model Protocol (Guidelines), coordination channels; Judicial Coordination, EUFam’s Model Protocol (Guidelines), drafting considerations; Judicial Coordination, EUFam’s Model Protocol (Guidelines), general principles Judicial Coordination, EUFam’s Model Protocol (background) definitions, 843 partners, 843n2 purpose, 318, 844 Regulations covered, 843–4 types of information required by judges/sources, 844 limitation of Model Protocol to direct judicial coordination, 845 Judicial Coordination, EUFam’s Model Protocol, Annex I, Table A (examples of Regulation provisions appropriate for judicial coordination) Brussels IIa examples, 854–9 MPRR examples, 865–7 MR examples, 859–62 PCRPR examples, 867–70 SR examples, 862–4 Judicial Coordination, EUFam’s Model Protocol, Annex I, Table B (examples of situations appropriate for judicial coordination) choice of court/law, 870–2 decline of jurisdiction (SR 6), 877 forum necessitatis, 874–5 jurisdiction based on the child’s presence (Brussels IIa 13), 874 jurisdiction on property regime in connection with succession or matrimonial partnership matters, 872–3

Index  913 limitations on the modification of a decision (MR 8), 875 lis pendens/related action, 876–7 residual jurisdiction (Brussels IIa 7/Brussels IIa 14), 874 subsidiary jurisdiction (MR 6, SR 10, MPRR/ PCRPR 10), 873–4 transfer of a case (Brussels IIa 15), 877 Judicial Coordination, EUFam’s Model Protocol, Annex II (model form for initial communication), 881–4 Judicial Coordination, EUFam’s Model Protocol (Guidelines), coordination channels acknowledgment of receipt of request for information, 852 establishing a common methodology, 851–2 identification of competent authority, 849 assistance of EJN-NCP, 849 assistance of IHNJ local member, 850 information required in request for assistance, 850 means and language of communication, 851 e-mail as preferred means, 853 language considerations, 853 oral communication good command of a shared language requirement, 853 interpretation services, 853 parties’ rights, 853 transmission of documents, 853 Judicial Coordination, EUFam’s Model Protocol (Guidelines), drafting considerations concern as to proper legal basis for judicial coordination, 846 consistency with previous instruments, 845 ‘Principles for Direct Judicial Communications’ (2013), 845–6 inclusion of references to EJN-civil and IHNJ, 845 review of the Regulations to establish opportunities for coordination, 846 Brussels IIA 15 as sole specific provision for coordination, 846 outcome of review, 846–7 Judicial Coordination, EUFam’s Model Protocol (Guidelines), general principles avoidance of duplication, 847 compliance with national substantive and procedural law, 848 data protection, 848 means of communication, 848 obligation to exchange information, 847 initiation of exchange, responsibility for, 847

parties’ rights, 848 protection of judicial independence and impartiality, 848 respect for judges’ legal framework, 847 speed, efficiency and cost-effectiveness, importance of, 847 taking of evidence, 848 timing, 847 jurisdiction (family and succession matters): see also Brussels IIa (jurisdiction); MR (2009), jurisdiction (MR 3–14); parental responsibility (Brussels IIa) (jurisdiction); private divorce actor sequitur forum rei, family and succession rules as departure from, 165 Borrás, 165 forum rei, absence or inclusion only as a possibility, 165 actor sequitur forum rei as generally preferred AFSJ rule absence of overarching principles to guide legislator, 64 access to justice (TFEU 67(4))/mutual recognition (TFEU 81(1)), dependence on, 164, 189 AFSJ aims and goals as aid to interpretation, 164n11 as a counterpoise to recognition and enforcement of foreign judgments, 164 examples (Brussels Ia 4, Brussels IIa 3(a) and MR 3(b)), 164–5 jurisdiction in general EU law and in family and succession matters distinguished, 165 as long-standing principle, 164 other jurisdictional bases provided for as exceptions, 165 procedural fairness and, 164 as rejection of forum actoris, 164–5 actor sequitur forum rei, jurisprudence AS-Autoteile Service GmbH v Malhé, 164 Group Josi Reinsurance Company, 164–5 addressing the problems attention to substance when devising procedural rules, 201 judicial dialogue, 201 common rules absence of, 165, 200–1 diversity of possibilities, 164 interrelationship between rules on national and international jurisdiction (MR 3(a) and 3(b)), 446–7 Sanders and Huber, 446–7

914  Index principles: see also Brussels IIa, CFR principles and (Recital 33); child abduction (ECHR 8/Brussels II/Brussels IIa); parental responsibility (Brussels IIa); ‘weaker party’ concept/examples asymmetrical jurisdiction clauses, 641–3 best interests of the child (Brussels IIa Recital 12): see best interests of the child differences between the Regulations, 200–1 forum/ius harmony, 165, 189, 191, 201, 595–6 general jurisdiction principles distinguished, 165 matrimonial matters (Brussels IIa Recital 33: CFR principles), 200 parental responsibility (Brussels IIa): see parental responsibility (Brussels IIa) (jurisdiction) protection of the weaker party (MR Recital 12), 165, 182, 187, 200, 808, 833–4 proximity principle, 165 project partners, 843 Rome III, applicability, 534 jurisdiction (family and succession matters), EUFam’s Policy Guidelines grounds of jurisdiction as alternatives/lack of a hierarchy, 802 hierarchy of grounds of jurisdiction (Brussels IIa 3), 803–4 modification of Brussels IIa 7 (residual jurisdiction), 804 place of last common habitual residence as main ground, 804 possible objections to, 804 jurisdiction (family and succession matters/ MR–Brussels IIa relationship), problems/risks: see also parallel proceedings, problems grounds of jurisdiction as alternatives/lack of a hierarchy, 153–4, 166–7, 185, 203, 803–4 application of national law contrary to HMP, 195 rush to a court, 184, 185, 187, 627, 802, 803–4 uncertainty/unpredictability/need for review, 185, 592–3, 627n2, 802, 803–4 judicial coordination/dialogue–lack of, 188 jurisprudence A v B, 86–7, 185, 186, 614–15 R v P, 516, 533, 535, 536, 540 MR–Brussels IIa, inconsistencies grounds of jurisdiction, 184–6, 188, 241, 801–2 parties’ autonomy, 184

MR–Brussels IIa, inconsistencies, risks from conflicting decisions, 184, 203 extra costs (Study on the assessment of Brussels IIa (2015)), 184, 185 misapplication of the rules, 87, 186, 212–14, 533 multiplicity of fora, 184, 802 rush to a court, 184, 185, 627, 802, 803 jus cogens, lis pendens as, 208 Latvia Brussels I Regulation, date of applicability, 83 divorce rates/cases, 53, 543 enhanced cooperation and, 259 foreign law, 277 MPRR and, 107 PCRPR and, 107 same sex marriage, 7–8, 107, 113 lawful removal of a child: see also child abduction; return of the child CoE Recommendation on Child Relocation (2015), 440 difficulty in obtaining identity/travel documents, 368–70, 440–1 Gogova, 369–70, 440–1 right to family reunification and, 368–70 Lebanon, divorce in, 37 legal separation: see divorce/separation/ annulment proceedings (Brussels IIa provisions) Liechtenstein, Schengen area and, 350 lis pendens: see lis pendens (background); lis pendens (jurisprudence); lis pendens (national practice); parallel proceedings; res judicata lis pendens (background) critical date, determination as autonomous rule, 203 definitions, 208–9 definitive seisure by both courts, 208 establishment of time of seisure [in case of a requirement for preliminary proceedings], 214–15, 403 means of seisure, 208 modalities of seisure for national courts, 208–9 objectivity/dependence on order of seisure of courts, 208 definition/characterisation, 207–9 automaticity, 208 conditions (same parties, relations to the same party/a Member Court is first seised), 208, 213 core approach (family/succession relations), 209

Index  915 dependence on autonomous rule on determining when the court is deemed to be seised, 203 international proceedings between Member States, limitation to, 494 as jus cogens, 208 ‘of the court’s own motion’, 209 rule 1 (same parties/same subject matter/ different courts), 296–7 rule 2 (same parties/different courts), 296–7 judicial coordination, scope for, 222, 876 mutual trust and, 307, 313, 514 negative declaratory judgment/action seeking finding of liability (maintenance cases) as parallel actions, 213–14 provisional measures (Brussels IIa 20) and, 481–2 regulatory history Brussels I (CJEU interpretation/extension by analogy to all civil justice regulations), 206 Brussels Ia (adoption of core EU provisions/ CJEU decisions), 206, 817 Brussels IIa divergence from Brussels Ia, 206, 209 Brussels IIter Proposal’s retention of main elements of Brussels II/clash with MR and SR, 209 rejection of request for on grounds of international public policy, 37–8, 314–15, 481n90 relevant texts Brussels IIa 19 (lis pendens and dependent actions), 206–7 MR 12/SR 17 (lis pendens), 207 MR 13/SR 18 (lis pendens/related actions), 207 stay of proceedings requirement (Brussels IIa 19), 208–9, 512–13 decision on jurisdiction distinguished, 515 lis pendens (jurisprudence) A v B, 209, 217, 437, 493, 532, 818 C v M, 213 Cartier parfums, 209 Eurofood, 206 Folien Fischer, 213 Gantner Electronic, 208 Gasser, 213 Gubisch, 208 HanseYachts, 220–1 Liberato, 481, 514, 532–3 Mercredi, 314–15 MH, 207, 208–9 Nipponkoa, 213 OUI, 213

Owusu, 220, 221–2, 819 Purrucker, 209, 213, 481–2 Schlömp, 209 AG’s opinion, 214–15 Tatry, 208, 213–14 Weber, 208 lis pendens (national practice) efficiency, post-Amsterdam Treaty importance of, 210, 219–20 EUFam database, 211 EUFam Reports, findings/issues, 210–11, 455–6, 482–3, 532–3 Brussels IIa breaches, 210 correct application of EU rules via the application of national rules, 210 court’s right to collect evidence ex proprio motu, 214 difficulty in establishing seisure of other court, 214 distinction between assessment of lis pendens and of jurisdiction, 210, 212–13 establishment of time of seisure [in case of a requirement for preliminary proceedings], 214, 493–4 foreign procedural law, difficulty of establishing, 214, 220–1 lack of cooperation, 220–1, 819–20 lis pendens, exclusive jurisdiction rule, 210 misapplication of the rules, 87, 186, 212–14, 314–15, 817 ‘misapplication’/‘false application’ defined, 212 multiplicity of parallel procedures, 817 national courts application of own rules, 212–13 problematic application, 214–16 recognition of decisions in breach of the lis pendens rule, 210–11, 314–15, 481n90, 512–13, 532–3 res judicata and, 532–3 smooth application including the use of non-lis pendens solutions, 211–12 SR cases, problems limited to establishing whether proceedings had been started elsewhere, 216 third state proceedings, determining the applicable rules, 215–16, 481–3, 515, 819 translation problems, 214 Lithuania Brussels I Regulation, date of applicability, 83 divorce rates, 53 foreign law, 277, 282 MPRR and, 107 surnames in, 9

916  Index Lugano Convention (2007) EU compliance with obligations to, 333–4 non-EU Contracting States, 333n5 recommended revision of, 334 Luxembourg enhanced cooperation and, 259 foreign law, 276, 277 registered partnerships, 110n6 same-sex marriage, 53n4 maintenance: see maintenance, concept/ definitions; maintenance (child); maintenance conventions/ EU legislative instruments, interrelationship; maintenance obligations, choice of law (HMP 7–8); maintenance obligations (forum/ius harmonisation); maintenance (spousal) maintenance, concept/definitions, 73–9 absence from MR, 79 as autonomous/independent concept, 78, 79, 180–1, 236 child maintenance: see maintenance (child); MR (2009), scope/objectives, maintenance obligations arising from a family relationship … a maintenance obligation in respect of a child (MR 1(1)/HMP 1(1)) financial support, limitation to, 73–4 maintenance and succession matters distinguished, 87 multiplicity/complexity of, 73–4 MR/HMP, demarcation difficulties, 74 spousal maintenance: see maintenance (spousal) maintenance (child): see also MR (2009), scope/ objectives, maintenance obligations arising from a family relationship … [including] a child (MR 1(1)/HMP 1(1)) adopted or step-children, 75 divergence of State practice, 75 biological children as legal obligation (UNCRC 27(4)), 74 as moral obligation, 74 child benefits, effect on, 617–18 surrogacy, 75 maintenance conventions/EU legislative instruments, interrelationship overview, 88–91 applicable law, determination of (MR 15/ HMP 1(1)), 71, 180–1, 244–5, 448–9, 485, 537–8 refusal of designated law on public policy grounds (HMP 13) (negotiating history), 294–5

Brexit, implications, 620 compatibility clauses (general) absence from MR/MR 15 referral to HMP, 386–7 maximum effectiveness test, 388, 391, 392, 394, 395 priority (VCLT 30(2)), 386 resort to VCLT 31 general rule of interpretation as alternative, 390 compatibility clauses (HMP 18/HMP 19) ‘as between the Contracting States’ (HMP 18)/universal applicability of HMP, conflict, 387–9 ‘coordination with other international instruments’ (HMP 19), ineffectiveness, 388 HMP as replacement for HMC (1973) and (1956) (HMP 18), 387–9, 394 negotiating history, 388 compatibility provisions (VCLT) applicability of VCLT, 389 priority of later treaty if the parties to both treaties are the same (VCLT 30(3)), 389–90 priority of treaty ratified by both parties where parties to the treaties are not the same (VCLT 30(4)(b)), 390 conventions/EU instruments prior to 2007 reforms, 72, 180–1 determination of the applicable treaty by reference to context, object and purpose (VCLT 31) HMC (1956)/HMP, 390–1 HMC (1973)/HMP, 391–4 HCCH instruments (HMC 1956/HMC 1973/ HMC 2007/HMP 2007) applicability in EU Member States, 385–6 continuation in force of older instruments, 385–6, 616 potential for conflicting treaty obligations, 385–6 HMP (2007) as instrument for harmonisation of applicable law (HMP 1(1)), 180–1, 448–9 lack of HCCH Member States’ interest in harmonising applicable law rules, 72, 385 negotiation of, 181, 385 principal objectives, 393, 395 HMP (2007)/HMC (1973) compared, 392–4 compatibility clause, 394 law applicable to relations between spouses and ex-spouses, 393–4 lex fori, role, 392–3 parties’ choice of law autonomy, 394

Index  917 points of similarity, 392 reservations, 392 scope, 393 universal application (HMC (1973) 3/HMP 2), 391–2, 616 MR and HMC as parallel regimes division of responsibilities, 71, 181 post-Brexit significance, 620 synergy, coherence and complementarity as objective (MR Recitals 17, 20 and 24), 181 MR relations with existing conventions (MR 69), Battista (failure to take MR, HMC and New York Maintenance Convention into account), 90, 372–3 MR relations with other Community instruments/MR changes (MR 68) EAPOR as non-overlapping regulation/ reasons for preferring to the MR, 89–90 EEOR certificate requirements (EEOR 6) distinguished (Lothschutz v Vogel), 88–9, 181 replacement of Brussels I maintenance obligations (MR 68(1)/MR 75(2) exception), 88 replacement of EEOR maintenance obligations (MR 68(2)/HMP exception), 88, 181 Taking of Evidence Regulation (2001)/ Service Regulation (2007), procedural nature, 90 reforms (2007), 72 maintenance obligations, choice of law (HMP 7–8), 244–5 compliance with conditions, timing (MR 4(1)), 637 designation (general) (HMP 8), 245 as aid to stability and flexibility (Explanatory Report), 246 EUFam’s model clause, 643–5 exclusion of minors/vulnerable adults (HMP 8(3)), 239, 245, 644 formal requirements, 645 parties’ options (HMP 8(1)), 644 designation for purpose of a particular proceeding (HMP 7), 239, 244–5 as accord procedural, 245 determination of applicable law (HMP) (MR 15/ HMP 1(1)), 71, 180–1, 244–5, 386–7, 448–9, 485 informed choice requirement (HMP 8(5)), 645, 645n31, 647n 31, 671n61, 741n137 ‘maintenance obligation’ as autonomous concept, 78, 79, 180–1, 236

maintenance obligations (forum/ius harmonisation) constraints, 740, 741 matching connecting factors habitual residence (MR 4(1)(b)/HMP 8(1)(a)), 740–1 nationality (MR 4(1)(a)/HMP 8(1)(b)), 740–1 maintenance (spousal) applicable law (HMP 5) (‘closer connection’), 616–17 compensatory allowance as, 549 cross-border claims as ‘civil matter’ (Brussels Convention 1), 76 jurisprudence De Cavel II (Case 120/79), 75–6, 549 Van den Boogaard, 85–6, 549 matrimonial property distinguished, 84–6 England/Ireland and continental Europe distinguished, 85–6 exclusion of maintenance obligations (MPRR Recital 22/MPRR 1(2)(c) and PCRPR Recital 22/PCRPR 1(2)(c)), 84–5 exclusion of matrimonial property rights (Brussels 1(1)/Brussels I 1(2)/MR), 84 matrimonial property distinguished, jurisprudence De Cavel I, 84 Van den Boogaard, 85–6, 549 X v Y (Belgian courts), 86 problems caused by differences in national practices, 75–6 purpose, different approaches to, 75–6 same-sex marriages/partnerships, 76–9: see also same-sex marriage Malta Brussels I, date of application, 83 Brussels I Regulation, date of applicability, 83 divorce in, 128 foreign law, 276, 280, 284 MPRR/PCRPR and, 84–5 same-sex marriage, 53n4 marriage/matrimonial matters see Brussels IIa; Brussels IIa (jurisdiction); family-related migration; Good Practices Seminar (May 2017), matters addressed; Islamic divorce; marriage, classification as; MPRR (2016); PCRPR (2016); polygamy; private divorce; Rome III (divorce); same-sex marriage marriage, classification as absence of a common view on as impediment to harmonising EU law, 365

918  Index absence of definition from Brussels IIa, 56, 365 absence of definition (MPRR Recital 17), 365 culturally incompatible marriage practices, concerns about, 28–9 national law including its rules of PIL (MPRR Recitals 17, 21, 38 and 64), 56, 106n15 possibilities, 56 marriage of convenience, 363–4 Carpenter, 363 Metock, 363 O, 363 Surinder Singh, 363 matrimonial property regimes definitions: see MPRR (2016), ‘matrimonial property regime’, definitions maintenance distinguished, 84–6 negotiating history: see MPRR (2016)/ PCRPR (2016); PCRPR (2016) succession distinguished: see SR (2012) mediation abuse of (Raw), 610, 619, 829 benefits, 828–9 Brussels IIter Proposal, EUFam’s assessment, 828–9 Central Authorities’ provision for, 403, 610–11, 829 divorce, national provision for, 214 enforcement of a court order and, 316 EUFam’s Policy Guidelines, 828–30 EUFam’s Policy Guidelines, recommendations, 630 Good Practice Seminar discussion of, 610–11 Guide to Good Practice, 408 maintenance claims and, 188 timing of the seisure of the court (lis pendens) and, 214–15, 218, 818 Mexico, same-sex marriage, 53n4 minors classification as (HCAC 4/HCPC 2/Brussels IIa/ Brussels IIter), 64, 491–2 protection of unaccompanied, 613–14 model clauses (choice of law/court): see also SR (2012), forum/ius harmonisation (Gleichlauf) Note: ‘coordination is the preferred terminology when discussing EUFam’s Policy Guidelines, ‘unification’ in discussing the model guidelines. This parallel language has been retained in the index. autonomous proceedings, 660–9: see also MR (2009), choice of court (MR 4) Brussels IIa 12(3) (prorogation of jurisdiction), 629–32: see also prorogation of jurisdiction (Brussels IIa 12)

HMP 8 (choice of law), 643–4: see also MR (2009), choice of court (MR 4) MPRR 5/MPRR 7 (choice of court), 646 MPRR (2016) MPRR 22 (choice of law), 649–51 MPRR (2016), choice of law (MPRR 22) MR 4 (choice of court), 636–43: see also MR (2009), choice of court (MR 4) PCRPR 5/PCRPR 7 (choice of court), 652–4: see also PCRPR (2016) PCRPR 22 (choice of law), 655–7: see also PCRPR (2016), choice of law (PCRPR 22) Rome III 5 (choice of applicable law), 634–6: see also Rome III (divorce) (parties’ choice of applicable law (Rome III 5)) SR 5 (choice of court), 657–60: see also SR (2012), applicable law; SR (2012) (jurisdiction (SR 4–19)), choice of court (SR 5) SR 22, SR 24(2) and SR 25(3) (choice of law): see also SR (2012), applicable law unified proceedings (choice of law agreements): see also SR (2012), applicable law MPRR and PCRPR 22(1)(b)/SR 24(2)), 718–27 SR 22/SR 25(3)/MPRR and PCRPR 22(1)(b), 727–37 unified proceedings (jurisdictional rules) dissolution of a registered partnership and PCRPR 5(1) proceedings, 678–84 divorce, separation or annulment and parental responsibility, 670–6: see also prorogation of jurisdiction (Brussels IIa 12) divorce, separation or annulment and spousal maintenance, 676–8: see also MR (2009), choice of court (MR 4) divorce/separation/annulment and MPRR 5(2) proceedings, 678–84 succession/MPRR or PCRPR proceedings, 688–90 unification of Brussels IIa 3 with parental responsibility (Brussels IIa 12(1))/ spousal maintenance (MR 4(1)(c)(i))/ matrimonial property (MPRR 5)//child maintenance (MR 3(d)) proceedings, 684–8 unified proceedings (unifying the law): see also Rome III (divorce) (parties’ choice of applicable law (Rome III 5)); SR (2012), applicable law, unification of the law MPRR and PCRPR 22(1)(b)/SR 22, 710–18 Rome III 5/HMP 8/MPRR 22/SR 22/SR 25, 705–9

Index  919 Rome III 5/HMP 8(1)(c) and (d)/MPRR 22/ SR 22, 697–701 Rome III 5/HMP 8(1)(d), 690–3 Rome III 5(1)(c)/MPRR 22(1)(b), 693–5 unifying forum and ius constraints, 249–53, 738, 739, 750–1, 753, 754, 757–8 divorce or separation, 738–9 divorce/separation and maintenance, 742–5 divorce/separation, maintenance and property, 753–8 divorce/separation and property, 750–3 maintenance, 740–1 MPRR (2016): see MPRR (2016)/PCRPR (2016), forum/ius harmonisation; Rome III (divorce) (forum/ius harmonisation); SR (2012), forum/ius harmonisation (Gleichlauf) property, 745–9 succession, 759–60 succession and property, 760–70 Morocco divorce in, 31–3 polygamy in, 31–2 MPRR (2016): see also MPRR (2016)/PCRPR (2016); PCRPR (2016) applicability in case of divorce, separation or annulment recognisable in the forum State (MPRR 9(3)) (res judicata), 56 critical dates, 645 exclusion of ‘marriages’ not recognized by national law/PIL (MPRR 9(1)), 56 same-sex marriages if the law of the forum allows, 106n15 applicable law first habitual residence of the spouses (MPRR 26 1(a)), 236 national law including its rules of PIL (MPRR Recital 21), 56 unity of/applicability to all assets wherever located (Recital 43 and MPRR 21), 236 choice of court (MPRR 5(2)) automatic link to divorce/separation/ annulment proceedings, 646, 678–9 Brussels IIa’s lack of a choice of court provision, difficulties arising from, 680–1 EUFam’s model clause (prior to filing of application), 679–80 EUFam’s model clause (subsequent to filing of application), 682–3 exclusive jurisdiction (MPRR 7(1)), 681, 683

formal requirements, 684 rush to a court risk, 680–1 timing of agreement, 681 choice of court (MPRR 7) applicability, 646–7 EUFam’s model clause, 647–8 formal requirements, 649 choice of law (MPRR 22), 649–51 change of applicable law, effect (MPRR 22(2)/MPRR 22(3)), 650n40 EUFam’s model clause, 650–1 formal requirements (MPRR 25), 651 non-retroactive effect/effect on third parties (MPRR 22(3)), 249 parties’ options, 245, 649 validity of consent, applicable law (MPRR 24(2)), 650n41 choice of law (MPRR 22(1)(b))/Rome 5(1)(c) proceedings (nationality as unifying factor), 693–5 EUFam model clauses, 694–5 limitations on, 694–5 forum/ius harmonisation (EUFam model clauses) constraints, 750–1, 753 divorce/separation and property (Brussels IIa 3/MPRR 5(1)/ Rome III 5(1)(d) in conjunction with MPRR 22 (connecting factors)), 750–3 judicial coordination, examples of provisions appropriate for, 865–7 jurisdiction, acceptance by appearance (MPRR 22), 649n38 ‘marriage’, termination by national law including its rules of PIL (MPRR Recitals 17, 21, 38 and 64), 56, 106n15 material scope (excluded matters (MPRR 1(2)/Recital 20)) entitlement to transfer or adjustment of rights to retirement or disability pension (MPRR 1(2)(f)), 106 existence, validity or recognition of a marriage (MPRR 1(2)(b)), 106 legal capacity of the spouses (MPRR 1(2)(a)/Recital 20), 106 maintenance claims (Recital 22/MPRR 1(2)(c)), 9, 84–5, 106 nature of rights in rem (MPRR 1(2)(g)), 106 registration of rights in immovable or movable property (MPRR 1(2)(h)), 106 social security (MPRR 1(2)(e)), 106 succession to the estate of a deceased spouse (MPRR 1(2)(d)), 106

920  Index material scope (MPRR 1(1)) (matrimonial property regime), 104–5: see also ‘matrimonial property regime’ (MPRR 3(1)(a)) above exclusion of public matters (revenue, customs, or administrative matters) (MPRR 1(1)), 106 ‘matrimonial property regime’, definitions as autonomous concept (Recital 18), 85, 104 as broad and inclusive concept, 105 civil and common law approaches distinguished/adoption of civil law approach, 104–5, 107 difficulty of interpretation, 85 MPRR 3(1)(a), 85, 104 primary vs secondary regimes, 105 ‘matrimonial property regime’ (primary regime) applicability of MPRR (Recital 18 (applicability of Regulation ‘to rules from which the spouses may not derogate’)), 105 examples, 105 as non-derogable, 105 ‘matrimonial property regime’ (secondary regimes) applicability of MPRR (Recital 18 (applicability of Regulation ‘to any optional rules to which the spouses may agree)), 105 party-agreed vs legal regimes (Recital 18), 105 personal scope, 108 temporal scope (MPRR 70) entry into force (MPRR 70(1)) vs date of application (MPRR 70(2)), 108 exceptions (MPRR 64–6), 108 territorial scope Member States participating in the enhanced procedure (Recital 11), 9–10, 103, 106–7, 645 non-participants (Poland, Hungary, Latvia, Lithuania, Romania and Slovakia)/ possible explanations, 107 non-participants (UK, Ireland and Denmark)/ possible explanations, 107, 113 MPRR (2016)/PCRPR (2016) applicable law, parties’ right to choose (MPRR/PCRPR 22), 245 scale of connecting factors (MPR/PCRPR Recital 35), 356, 357 applicable law, registered partners’ right to choose (PCRPR 22) as aid to management of property by spouses or partners (MPRR Recital 43/ PCRPR Recital 44), 246

omission from Commission’s Proposal/ inclusion on human rights/CFR 20/ CFR 21 grounds, 245 requirements (recognition of registered partnerships/property consequences arising from), 245–6 denial of jurisdiction as forum’s answer to a conflict of choice of law rules (MPRR/PCRPR 9(1)), 16–17 forum/ius harmonisation (EUFam’s model clauses), 745–9 choice of law (MPRR 22) as determinant of court/jurisdiction, 745 constraints, 249, 740, 747–8, 750, 753 MPRR 22/MPRR 7(1) (jurisdiction) with choice of law (MPRR 22(1)), 746 MPRR 22/MPRR 7(1) (jurisdiction) without choice of law (MPRR 26), 747 PCRPR 22/PCRPR 7(1) (jurisdiction) with choice of law (PCRPR 22(1)), 748 PCRPR 22/PCRPR 7(1) (jurisdiction) without choice of law (PCRPR 26), 749 free movement of persons and (MPRR/PCRPR Recitals 32 and 35), 356, 357 judicial coordination (MPRR/PCRPR 10), 874 nationality as connecting factor (applicable law), determination (MPRR Recital 50/PCRPR Recital 49/MPRR/ PCRPR 22(1)(b)), 152, 156, 760–5 nationality as jurisdiction criterion (MPRR/ PCRPR 6(d)), 152–3, 154 negotiating history in date order Proposals for Regulations on matrimonial property regimes and the property consequences of registered partnerships (2011), 103 Justice and Home Affairs Council recognition that unanimity (TFEU 81(3)) could not be achieved (3–4 December 2015), 103 Council Decision reflecting wish of many Member States to establish enhanced cooperation in the areas under discussion (9 June 2016), 6, 9–10, 17–18, 57–8, 103, 106, 108, 233, 253, 336 territorial conflicts of laws (MPRR/PCRPR 33–5), 10 unification with succession proceedings, 688–90, 760–70 MR (2009), choice of court (MR 4) applicability to post-1 July 2013 agreements, 636n19

Index  921 Brussels IIa 12 (prorogation of jurisdiction), inconsistency with/recommendation for assimilation, 184, 615, 804–5, 816 Brussels IIa lack of a choice of court provision, difficulties arising from, 184–5, 676, 678 rush to a court consequent on, 184, 678 designation of a court of a state party to LC II, 182 disputes relating to a child under 18 (MR 4(3))/ recommended change, 182, 184, 615, 636, 803, 833–4 EUFam’s model clauses asymmetrical jurisdiction clause, 641–3 exclusive jurisdiction, 637–9, 678 non-exclusive jurisdiction, 639–41 unified divorce/separation/annulment and spousal maintenance (MR 4(1)(c)(i)), 676–8 formal requirements, 643 infrequency of resort to, 573–4 judicial coordination, 859–62 model clauses, 636–43 options, 636–7 parties’ options (MR 4(1)), 637, 676 spousal maintenance dispute options, 182, 637, 676–8 MR (2009), jurisdiction (MR 3–14) acceptance by appearance (MR 5), 492, 529–30, 536, 643n25 applicability in absence of MR 3 jurisdiction (R v P), 536 ancillary proceedings concerning parental responsibility (MR 3(d)), 534–5 ancillary proceedings (MR 3(c), admissibility of negative declarations (‘torpedo actions)) Folien Fischer, 87, 448 lis pendens (LC II 27/LC II 30), 87 rarity in maintenance actions, 87, 448 Schlömp, 87, 448 ancillary proceedings, MR 3(c) (status) vs MR 3(d) (parental responsibility), 86–7, 446, 515–16, 801–2 A v B, 86–7, 185, 186, 187, 446, 515–16, 614–15, 808 exclusive, whether, 515–16 Mahnkopf, 87, 234 Županijski (Czech courts), 86 ancillary proceedings (MR 3(d))–Brussels IIa 8 (jurisdiction in matters of parental responsibility), interrelationship, 539–41 best interests of the child as deciding facto (R v P), 540 choice of court (MR 4): see MR (2009), choice of court (MR 4)

difficulties relating to: see also jurisdiction (family and succession matters/ MR–Brussels IIa relationship), problems/risks in cases where maintenance claims are ancillary, 188 consolidation possibilities, 808 in countries with a unified maintenance/ parental responsibility system, 540–1 grounds of jurisdiction as alternatives/lack of a hierarchy, 185, 485–6, 533–4, 808 inconsistencies with Brussels IIa, 184–6, 188, 241, 801–3 misapplication by national courts, 445–6, 549, 555 misattribution of parental responsibility jurisdiction, 484–5 multiplicity of instruments, 188 rush to a court consequent on, 184, 185, 187, 802, 803 difficulties relating to, recommendations harmonisation of Regulations, 187 judicial dialogue, 187, 188 mediation, 188 obstacles to (absence of MR 74 review), 187–8 retention of MR grounds of jurisdiction in preference to Brussels IIa, 187 training for legal professionals, 187 transfer of jurisdiction, 187–8, 807–8 direct effect in Member States, 445 forum necessitatis (MR 7) jurisprudence, 328–9 rarity of use, 155, 183 general grounds (MR 3), 182 habitual residence of the defendant (MR 3(a)) as basis, 534–6 mistranslation of ‘defendant’, 534–6 judicial coordination (MR 6), 873 modification of decision, limitations (MR 8) circumvention of the rule, 182 forum shopping, need to prevent, 183 judicial coordination, scope for, 875 national courts’ approach to, 183, 555 nationality as criterion (MR 6), 152 MR (2009), recognition and enforcement of decisions (MR 16–43): see also Central Authorities (MR 49–61) grounds for non-recognition (MR 24) failure to serve documents (MR 24(b)), 277, 314 irreconcilability with earlier decision in same cause of action/same parties (MR 24(1)(d)), 315 public policy clause (MR 24(a)), 294–5

922  Index obligation to use Central Authorities, whether (MS v PS), 419, 619 procedure in case of incomplete or unclear judgment from non-Member State, 618 right to apply for a review (MR 19) Choice of Law Seminar discussion, 618 implementation (national law), 618 incorrect Croatian translation, 618 rarity of application, 618 MR (2009), scope/objectives, 180–1 overview, 180 jurisdiction: see MR (2009), jurisdiction (MR 3–14) maintenance obligations arising from a family relationship … [including] a child (MR 1(1)/HMP 1(1)), 79–80, 180–1: see also maintenance (child) autonomous interpretation requirement (MR Recital 11), 79, 236 establishment of family relationships as matter for national law (MR 21), 79 establishment of underlying relationships as a separate issue/as matter for national conflicts rules (HMP 1(2)/Explanatory Report), 79–80 exclusion of establishment of family relationships underlying the maintenance obligation (MR Recital 21), 79 misapplication of MR, 484–5 preliminary determination of existence of a family relationship, applicable law (dependency method), 80 recognition and enforcement of maintenance decision and recognition of underlying family relationship distinguished, 79 objectives, 415 easing of recovery of debt by public authorities (MR Recital 14 and MR 64), 180 elimination of obstacles to the recovery of maintenance/free movement of related claims (MR Recitals 22, 25, 26, 31, 45 and 52), 180, 364–5 measures to achieve, 180 Tampere Conclusions, 180 public authorities’ recovery of maintenance debts (MR Recital 14/MR 64) ‘creditor’ status (Recital 14) vs ‘creditor [as] any person’ (MR 2(1)), 615–16 EUFam’s Policy Guidelines/recommendation for amendment, 834 Good Practice Seminar discussion of, 180n100, 615–16

HMC 9/HMP 10, 392 jurisdiction issues (MR 3(a)/MR 3(c)), 180n100, 615–16, 834 temporal scope applicability ‘to proceedings instituted, to court settlements approved or concluded, and to authentic instruments established after its date of application (MR 75(1)), 82 Brussels I, date of entry into force for Member States to which it is applicable as determinant, 83–4 Croatia (Council Regulation (EU) No 517/2013 of 13 May 2013), 82 entry into force/date of applicability, 181, 537 ‘maintenance proceedings instituted’ (MR 75(1))/‘legal proceedings instituted’ (Rome III 18(1)) distinguished, 82 MR 76(2), 82 recognition, enforceability, and enforcement of decisions given in a Member State not bound by the HMP (MR 75(2)), 83, 537 territorial scope all Member States, 80–2 Denmark, exceptions relating to (EU–Denmark Agreement on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (2013)), 80–1, 181 EFTA countries (continuation of LC II), 181 erga omnes character of MR Chapter II rules on jurisdiction/HMP Chapter III rules on applicable law, 81–2 UK (Protocol 21 on the position of the UK in respect of the area of freedom, security and justice), 81, 181 Muslim divorce: see Islamic divorce mutual trust principle, 50 as autonomous concept, 119 Brussels IIa Recital 2, 166 ECHR, relevance under, 376, 378–83 Avotiņš, 381–3 Opinion 2/13 and, 380–3 Povse, 377–80, 382–3, 603 habitual residence, national courts’ decisions in respect of, 119 HMC and, 424 individual rights as secondary consideration, 378–9 lis pendens and, 307, 313, 514 provisional measures, recognition and enforcement, 497 public policy exception, 313, 578, 579, 581 SR (2012), 197, 199

Index  923 national identity, respect for (TEU 4(2)): see also cultural issues aspects of identity ‘inherent in their fundamental structures, political and constitutional’, 6 legal culture and international family law as part of, 6–8 ‘rich cultural and linguistic diversity’ (TEU 3(3)), 6 ‘the different legal systems and traditions of the Member States’ (TFEU 67(1)), 5 ‘the organization and working of the Member States’ legal systems’ (Protocol (1997) 7), 6 examples CJEU’s careful observance of principle, 8 continuing applicability of internal choice of law rules (Rome III 14/MPRR and PCRPR 19), 10 continuing validity of pre-existing treaties (Brussels IIa 63(1)), 9–10 exception culturelle/special legislative procedure (TFEU 81(3)), 6–7 enhanced cooperation, 6, 9–10, 17–18, 103, 106, 233 limits to, jurisprudence Avello, 8 Bogendorff von Wolffersdorff, 8 Coman, 7–8, 9, 16, 78, 365, 590–1, 810 Grunkin, 8 Mircea Florian Freitag, 8 Runevič-Vardyn and Wardyn, 9 Sayn-Wittgenstein, 9 limits to bar on surname restrictions, 8–9 bar on the use of public policy exception, 8 primacy of EU law for purpose of protecting EU rights, 7–8 protection of fundamental right (CFR/ ECHR), 9 nationality: see discrimination on grounds of nationality, prohibition (TFEU 18); nationality as a connecting factor/applicable law; nationality as a jurisdiction criterion (multiple common nationalities); nationality as a jurisdiction criterion (nationality of a single person) nationality as a connecting factor/applicable law: see also applicable law/jurisdiction, harmonisation of rules on determination of nationality in the absence of a choice by the parties/ lex fori option, 159–60 guidance in the Regulations, 152, 156–60

international conventions, role, 157–9 law of non-EU country, exclusion, 160 as matter for national law/international conventions in observance of EU principles, 152, 156–9 nationality as jurisdictional criterion distinguished, 152 prohibition of discrimination on grounds of nationality as impediment, 12, 151, 158 pros and cons, 11–12 nationality as a jurisdiction criterion (multiple common nationalities) as an additional criterion (Brussels II Convention)/subsequent examples, 151–2 common nationality as additional criterion (Brussels IIa 3(1)(b)), 152–4, 469–70 ‘effective nationality’, relevance/possibility of multiplicity of fora (Brussels IIa), 153–4, 799–800 common nationality as subsidiary criterion (MR 6/MPRR 6(d)/PCRPR 6(d)), 153, 154 determination of nationality absence of provision in Brussels IIa, 153–4 MPRR 26(2) (multiple common nationalities), 154 as preliminary question (MPRR Recital 50/ PCRPR Recital 49/SR Recital 41), 152 silence of Brussels IIa, 154 SR Recital 41 (national law including international conventions in observance of EU principles), 152 equality of Member States’ nationalities and, 154 jurisprudence Hadadi, 153–4, 155, 159–60, 169–70, 358–9, 800 Micheletti, 160 nationality of non-EU country, relevance (Brussels IIa 7), 154 nationality as a jurisdiction criterion (nationality of a single person) forum necessitatis exception (MR Recital 16/ MR 7), 155, 327 multiplicity of fora, possibility of, 155 HCPC/HCPA 8(2)(a) (transfer of jurisdiction to a state better placed to assess the best interests of the child), 155–6, 339 nationality of a single person as additional or subsidiary rule (Brussels IIa 12(3)(a)/ SR 10(1)(a)/MR 4), 154–5 necessity: see forum necessitatis

924  Index negative declarations jurisprudence Folien Fischer, 87, 448 Schlömp, 448 Županijski (Czech courts), 447–8 maintenance claims and, 87, 447–8 tort, delict and quasi-delict claims, 87 Netherlands foreign law, 279, 280, 281, 282, 283 habitual residence as connecting factor in succession matters, 133 registered partnerships, 110n6 same-sex marriage, 53n4, 77 New Zealand, same-sex marriage, 53n4 Norway HCPC and, 480 HDC and, 337 HMC and, 73, 444 LC 23 and, 333 same-sex marriage, 53n4, 550 Schengen area and, 350 notaries, status/role Borrás, 172 Brussels IIa 46 (authentic instruments and agreements), relevance, 171, 813–14 constitutive vs declaratory role, 170–1, 813 EUFam’s Policy Guidelines, 813–14 inclusion in EU family law instruments including Brussels IIa, pros and cons, 171–3 jurisdiction (SR), difficulty of establishing, 190, 193, 449–50, 451–3 parallel proceedings, problems/risks: see also lis pendens overview, 203–5 causes grounds of jurisdiction as alternatives/lack of a hierarchy, 153–4, 166–7, 185, 203 lack of translations of old documentation for new Member States, 214 legal gaps/absence of CJEU guidance, 214 multiplicity of proceedings related to child abduction, 204, 817 simultaneous proceedings on provisional measures and the merits, 204 EUFam’s Policy Guidelines abandonment of perpetuatio fori, 819 recommendation for strict time framework, 818 problems identified as needing to be addressed clashing procedural arrangements, 217 conduct of the applicant, 217–18, 818 contradictory decisions, 184, 203, 803 costs, 184, 185, 205–6, 217

denial of effective remedy (ECHR 6(1)/ CFR 8), 205–6 failure of current regulatory system to reflect Brussels 1a changes, 209, 817 foreign procedural law, difficulty of establishing, 214, 220–1 forum shopping, 50, 167n31, 183, 217, 241, 253, 306, 361–3, 393n59, 394n63, 454, 551 gaps and unresolved lis pendens issues, 205, 214 judicial dialogue, lack of, 221 lack of cooperation in lis pendens relations, 220–1, 819–20 lis pendens with third states, absence of rules, 219–20, 819 MR–Brussels II, problems specifically related to: see jurisdiction (family and succession matters/MR–Brussels IIa relationship), problems/risks perpetuatio fori principle, relationship with, 204, 218–19, 819 rush to a court risk, 184, 185, 187, 218, 627, 802, 803, 818 timing of service of documents/institution of proceedings, 218, 818 regulatory history Brussels Convention and Brussels I/LC II, continuity of interpretation, 206, 209, 212 Brussels I (CJEU extension by analogy to all civil justice regulations), 206, 212, 529n40 Brussels Ia (adoption of core EU provisions/ CJEU decisions), 206, 818–19 Brussels Ia response to CJEU jurisprudence, 216 Brussels IIa divergence from Brussels Ia, 206, 209 Brussels IIter Proposal’s limited changes to lis pendens, 216–17, 221–2 sources of information: see also lis pendens (national practice) EUFam’s National Reports on good practice, 217 Study on the assessment of Brussels IIa (2015), 184, 185, 217 parental responsibility: see Central Authorities (Brussels IIa 53–8) (parental responsibility); HCPC (1996) (applicable law); parental responsibility (Brussels IIa); parental responsibility (Brussels IIa) (jurisdiction); parental responsibility, definitions

Index  925 parental responsibility (Brussels IIa) applicable law absence of provision, 61 applicable international law/national law as fallback, 53, 61 nationality of the child as connecting factor (Brussels IIa 12(3)(a)), 154–5 definitions (Brussels IIa 2), 62, 63 adoption of HCPC 1(2) definition, 63 ‘authority’ (Brussels IIter Proposal 2(1)), 814n48 autonomous definition, need for, 63, 65–6, 68, 70 ‘court’ (Brussels IIa 2(1)), 437–8, 813, 814n48 holder of parental responsibility (Brussels IIa 2(8))/natural or legal person as (Brussels IIa 2(7)), 64–5 ‘judge’ (Brussels IIa 2(2)), 814n48 right to determine the child’s place of residence (Brussels IIa 2(9))/right to take a child to a place other than the habitual residence (Brussels IIa 2(10)) distinguished, 65 rights of access (Brussels IIa 2(10))/persons entitled to, 66–7 rights of custody (Brussels IIa 2(9))/ autonomous meaning, 65–6 EUFam’s Policy Guidelines Recommendations hierarchy between EU and national resources, 82 need for revised Recital 9 to clarify Brussels IIa 1(2)(e), 822 jurisdiction: see parental responsibility (Brussels IIa) (jurisdiction) material scope (Brussels IIa 1) age range (Brussels IIter 2(6)), 64 age range, omission/for Member States to determine (Commission’s Practice Guide’), 64 attribution, exercise, delegation, restriction or termination of parental responsibility (Brussels IIa 1(1)(b)), 62, 64 ‘civil matters’, 65 national law, role, 64 material scope (excluded matters (Brussels IIa 1(3))), 62, 68–70 decisions on adoption, measures preparatory to adoption, or the annulment or revocation of adoption (Brussels IIa 1(3)(b)), 69 as exhaustive list, 68 matters governed by EU measures other than Brussels IIa (Brussels IIa 1(3)(e) and (f)), 68 matters governed by national laws (Brussels IIa 1(3)(a-d and g)), 68

measures as a result of criminal offences committed by children (Brussels IIa 1(3)(g)), 69 parent-child relationship (Brussels IIa 1(3)(a)), 69 reasons for (Brussels IIa Recital 10), 69 trusts or succession (Brussels IIa 1(3)(f)), 69–70 material scope (included matters (Brussels IIa 1(2))), 62, 65–8 administration, conservation or disposal of the child’s property (Brussels IIa 1(2)(e)), 62, 64, 68, 821 all decisions on parental responsibility independently of any link with a matrimonial proceeding (Recital 5), 64 designation and functions of person/body in charge of the child (Brussels IIa 2(c)), 68, 506 enforcement of penalty payment to ensure effectiveness of rights (Bohez) vs Brussels I (as a tort claim), 67, 507 guardianship, curatorship and similar institutions (Brussels IIa 1(2)(b)), 68 as non-exhaustive list, 65 placement of the child in a foster family or in institutional care (Brussels IIa 1(2)(d)), 68 rights of custody and access (Brussels IIa 1(2)(a)), 65–6 MR and SR distinguished, 69 ‘Practice Guide for the application of the Brussels IIa Regulation’ (2014) (Commission), 64, 68 parental responsibility (Brussels IIa) (jurisdiction) habitual residence of the child (Brussels IIa 8(1)), 173–5, 239, 468–9 jurisdiction based on child’s presence (Brussels IIa 13), 530–1 multiplicity of provisions for, problems of overlap/gaps, 435–6 Brussels IIa–HCPC interface (Brussels IIa 61/HCPC 52(1)), 262, 436–7 child abduction and, 204, 554 delimitation with national legislation, 437–8 perpetuatio fori (Brussels IIa 9): see perpetuatio fori principles best interests of the child (Brussels IIa 12), 70, 144, 165, 200, 357–8, 359–60, 369 child’s right to be heard (Brussels IIa Recital 19), 200

926  Index child’s right to be heard (Brussels IIter Proposal 20), 229–30, 439–40 equality for children (Brussels IIa Recital 5), 200 free movement as secondary to the best interests of the child, 357–8, 359–60 ‘Principles of European Family Law regarding parental responsibility’ (2007) (CEFL), 63 proximity (Brussels IIa Recital 12), 200, 468 respect for CFR 24 rights of the child (Brussels IIa 33), 200 transfer to a court better placed to hear the case (Brussels IIa Recital 14), 200 prorogation of jurisdiction (Brussels IIa 12(3))/ timing of ‘unequivocal acceptance’ (Brussels IIa 12(3)(b)), 176–9, 180, 251–3, 478–9, 509–10, 629–33: see also prorogation of jurisdiction (Brussels IIa 12) EUFam’s model clauses (Brussels IIa (12)(3)/ Brussels IIter 10 variant), 630–3, 670–6 parental responsibility, definitions benefits of interaction between UN/HCCH and EU/CoE, 63 Borrás, 63 Brussels IIa 2(7)/HCAC 3(a) (holder of parental responsibility: natural or legal person), 64–5, 441 ECECR 1(3), 63 ECJRE 2(7), 63 HCAC 4, age range, 64 HCAC 5 rights of access (HCAC 5(b)), 65 rights of custody (HCAC 5(a)), 65–6 HCPC 1(2), 63 age range (HCPC 2), 64 Brussels IIa adoption of, 63 excluded measures (HCPC 3), 63 included measures (HCPC 3), 63 HCPI applicable law: national law of authorities entitled to take measures (HCPI 2), 507 assignment of family home as a protective measure, 507 right of authorities to take protective measures (HCPI 1), 507 national law mismatch with EU law/concepts, 548–9 responsibility for definition of contents, 63 ‘parental authority’ as earlier usage, 62–3 partnerships: see MPRR (2016)/PCRPR (2016); PCRPR (2016); same-sex marriage party autonomy: see autonomy of the parties

PCRPR (2016): see also MPRR (2016); MPRR (2016)/PCRPR (2016) applicable law, unity of/applicability to all assets wherever located (Recital 42 and PCRPR 21), 236 choice of court (PCRPR 5), 652 absence of EU rules on dissolution of registered partnerships, effect, 682 EUFam model clause (prior to application for dissolution), 681–2 EUFam model clause (subsequent to application for dissolution), 683–4 exclusive jurisdiction (PCRPR 7(1)), 683 link to dissolution or annulment proceedings ‘where the parties so agree’ (PCRPR 5(1)), 679 timing of agreement, 682 choice of court (PCRPR 7), 652–4 EUFam’s model clause, 653–4 evidence of non-consent (PCRPR 24(2)), 656n48 formal requirements, 654 choice of law (PCRPR 22), 655–7 change of applicable law, effect (PCRPR 22(2)), 655n47 EUFam’s model clause, 656–7 parties’ options, 655 free movement of persons and (PCRPR Recital 16), 357: see also MPRR (2016)/ PCRPR (2016), free movement of persons and (MPRR/PCRPR Recitals 32 and 35) judicial coordination, examples of provisions appropriate for, 867–70 jurisdiction, acceptance by appearance (PCRPR 8), 654n45 material scope (excluded matters) (PCRPR 1(2)) entitlement to transfer or adjustment of rights to retirement or disability pension (PCRPR 1(2)(f))/strict interpretation (Recital 23), 112 existence, validity or recognition of a registered partnership (PCRPR 1(2)(b)/ Recital 17), 112 legal capacity of partners (PCRPR 1(2)(a)/ Recital 20), 112 maintenance claims (Recital 22/ PCRPR 1(2)(c)), 84–5, 112 matters included in the Commission’s Proposal but absent from the Regulation, 112 nature of rights in rem (PCRPR 1(2)(g)) (excluding any effect on Members States’ numerus clausus rules (Recital 24)), 112

Index  927 public matters (revenue, customs, or administrative matters) (PCRPR 1(1)), 110, 112 registration of rights in immovable or movable property (PCRPR 1(2)(h)/ Recitals 27 and 28), 112 social security (PCRPR 1(2)(e)), 112 succession to the estate of a deceased partner (PCRPR 1(2)(d)), 112 material scope (PCRPR 1(1)) (property consequences of registered partnerships), 110–11: see also ‘property consequences of registered partnerships’, concept/definitions below civil aspects including the daily management and liquidation of the partner’s property (Recital 17), 111 negotiating history in date order Justice and Home Affairs Council recognition that unanimity (TFEU 81(3)) could not be achieved (3–4 December 2015), 103, 109 Council Decision reflecting wish of many Member States to establish enhanced cooperation in the areas under discussion (9 June 2016), 6, 103, 106, 109, 113–14, 233 personal scope, 113–14 ‘property consequences of registered partnerships’, concept/definitions absence of agreed definition/multiplicity of approaches to, 110–11 autonomous definition or substantive rule?, 111n9 de facto/non-registered partnerships distinguished, 110n5 difficulty of definition, 111 as independent and autonomous concept (Recital 17), 110–11, 112n15 as matter for national law, 111, 112n15 property consequences (PCRPR 3(1)(b)), 110 registered partnerships (PCRPR 3(1)(a)), 110 ‘registered partnership’ (PCRPR 3(1)(a)) (‘for the purposes of this Regulation’), 365 registration of rights in immoveable or moveable property/exclusion from PCRPR/as matter for national law effects of registration (Recital 28), 112n20 requirements including the checking of documents (Recital 27), 112n20 scope (temporal) (MPRR 70), entry into force/ date of application (PCRPR 70), 114 territorial scope Member States participating in the enhanced procedure, 9–10, 113

non-participants (Poland, Hungary, Latvia, Lithuania, Romania and Slovakia)/ possible explanations, 113 non-participants (UK, Ireland and Denmark)/ possible explanations, 113 perpetuatio fori/continuing jurisdiction following lawful change of child’s former habitual residence (Brussels IIa 9) acceptance of jurisdiction of the courts in new habitual residence, effect, 173–4 Brussels IIter Proposal 8(2) clarification/ rejection by EP, 174 best interest of the child and, 219 Brussels IIter Proposal’s adoption of forum non conveniens, 204 definition/characteristics, 218–19 as continental law principle, 219 risk of parallel proceedings arising from, 219 EUFam’s Policy Guidelines, 826–7 lawful [permanent] move during on-going proceedings Brussels IIter Proposal (adoption of HCPC position), 175 divergence between Brussels IIa 9(1) provision for and HCPC (absence of provision), 175, 219 lawful temporary change after initiation of proceedings new habitual residence (HCPC), 174 non-applicability of the rule in the absence of a decision for modification (Brussels IIa 9(1)), 174 state of habitual residence at the time of seisure of the court (Brussels IIter Proposal), 174, 491 priority of Brussels IIa over HCPC (Brussels IIa 61), 174 rarity of use, 826 Poland Brussels I Regulation, date of applicability, 83 foreign law, 275–6 MPRR and, 107 polygamy, 28, 31–2 public policy and, 316 Portugal divorce rates, 53 foreign law, 275, 280 matrimonial property law, 56n22 registered partnerships, 110n6 same-sex marriage, 53n4 preliminary questions (applicable law) alternatives (lex fori vs lex causae), 47 definitions ‘dependent reference’, 48

928  Index ‘independent reference’, 48 ‘preliminary questions’, 47 ‘sub-questions’, 48 lex causae, applicability (dependent reference), 49, 50 lex fori, applicability (independent reference) as the general rule, 46 national/internal harmony as basis for, 48 sub-questions, 48 preference (preliminary questions in harmonised areas) (lex fori), 49 disadvantages of lex causae, 49 preference (preliminary questions in non-harmonised areas), pros and cons of lex fori approach, 49–51 forum shopping, 50 inconsistency of lex causa approach with exclusion of renvoi (Rome I 20, Rome II 24, Rome III 1), 50–1 internal vs international harmony/ Rome III Recital 10, 50 lex fori, conclusion in favour of, 51 preliminary rulings (TFEU 267) national courts’ reluctance to use/reasons for, 557 lack of technical support in drafting questions, 557 pressure to complete proceedings, 557 occasion for, 96, 138, 150, 220, 437 possibility of introducing an obligation to request, 828 primacy of EU law: see EU law, primacy private divorce: see also Islamic divorce; notaries, status/role; Rome III clarification, need for/desirability of inclusion in Brussels IIter, 170–3, 179, 590–2 definition/classification as, 170, 488, 813 Good Practices Conference’s discussion of, 590–2 jurisprudence German courts, 36, 487–9 Pula Parking, 171 Sahyouni (exclusion from Brussels IIa), 10n30, 15, 35–7, 55, 172–3, 487–8, 550, 814 res judicata, treatment as, 224, 225 Property Consequences of Registered Partnerships Regulation: see MPRR (2016)/PCRPR (2016); PCRPR (2016) prorogation of jurisdiction (Brussels IIa 12) autonomous nature of Brussels IIa 12(3) proceedings (L v M), 478–9, 527–31, 629–33, 675 Brussels IIter 10 (unification of Brussels IIa 12(1) and 12(3)), 629n4

autonomy of the parties and (Brussels IIa 12), 251–3, 254–5 choice of court agreement (Brussels IIter 10(2)), 630n6, 676 as choice of court rule, 176–9 inconsistency with MR 4(3) (maintenance of a child under 18), 182, 184, 615, 803, 833–4 court’s right to raise ex officio, 476–7 declaration of acceptance (Brussels IIa 12(1) (b)/12(3)(b)) ‘all the parties to the proceedings’, 478, 630 ‘all the parties to the proceedings’ (Brussels IIter 10(1)(b)/Recital 23), 630n6 ‘at the time the court is seised’, 176–9, 180, 529–30 ‘at the time the court is seised’ (Brussels IIter 10(1)(b)), 630n7 formal requirements, 675–6 ‘in an unequivocal manner’ (Brussels IIa 12(1)(b)/12(3)(b)), 176, 178–9, 252, 529–30 ‘in the best interests of the child’, 154–5, 176–7, 182n114, 252, 436n39, 476–8, 510, 530, 833–4 ‘in the best interests of the child’ (Brussels IIter Recital 19), 630n8 ‘particular [substantial] connection’ (Brussels IIa 12(3)(a)/ Brussels IIter 10(1)(a)), 629 submission by appearance, 177, 529–30, 631n11, 673n71 entering an appearance without objecting to the jurisdiction (MR 5), 492, 536 EUFam’s model clause (Brussels IIa 12(3)/ Brussels IIter 10 variant) parental responsibility, 630–3 unified divorce/separation/annulment and parental responsibility proceedings, 670–6 EUFam’s Policy Guidelines, 825–6 EUFam’s Policy Guidelines, assessment beneficial change of article heading (Brussels IIter Proposal 10), 825 beneficial incorporation of Rome III 5 on timing, 825 desirability of improving coordination between Brussels IIa 12 (prorogations) and 15 (transfer), 825 difficulties from combining two separate grounds of jurisdiction (Brussels IIa 12(1) and (3)), 825 ‘the jurisdiction of the courts has been accepted (Brussels IIa 12(1)(b)), interpretation of, 824–5

Index  929 jurisprudence Gogova, 529 L v M, 176, 177, 478–9, 529, 530, 631, 633n11, 675 Saponaro, 178–9, 252, 478, 529, 628n6, 631n11, 673n71 Slovakian courts, 530 unification of divorce/separation/annulment and parental responsibility proceedings, as means of, 670–1 possible scenarios, 671–2 validity of parties’ declaration of consent, judicial discretion, 630, 672 protection of unaccompanied minors, 613–14 provisional and protective measures (Brussels IIa 20) fundamental rights, compliance with, 483 Good Practices Seminar (May 2017) discussion, 593–4 judicial coordination, scope for, 877–8 key elements, 511–12 lis pendens (Brussels IIa 19) and, 481–2 misapplication, 320–1, 511–12 recognition and enforcement mutual trust and, 497 Purrucker I, 319–21, 496–8, 593–4, 609–10 status as a ‘decision’ (Brussels 2(4)), compatibility with Brussels IIa 20(1), 496–7 scope, 319–21, 593–4 personal (Brussels IIter Proposal (limitation to child or property belonging to child)), 593–4, 609 territorial (analysis of Purrucker I), 319–20, 496–8, 609–10 proximity principle, 139, 141, 145–6, 605, 778–9 best interests of the child and (Brussels IIa Recital 12), 144, 200, 468 public law measures, as civil matters, 65 public policy exception definition/characterisation CJEU jurisprudence as source, 291 European law principles, impact, 292 mandatory rules and public policy principles distinguished, 290 as national versus European concept, 291–2 negative vs positive public policy, 16, 289–90 ‘procedural’ vs ‘substantive’ public policy, 226, 290–1 as solution to conflict between universal choice of law and lex fori, 16, 18–20 variability over time and space, 288 examples of invocation absence of public policy clauses from procedural Regulations, 293 Islamic divorce, 18–20, 33 maintenance, 294–5

polygamy, 316 refusal of designated applicable law (HCPC 22), 267 refusal of designated applicable law (HMP 13), 294–5 refusal of designated applicable law (substantive public policy), 290–1 refusal to recognise a foreign judgment, 225–6, 290–1, 312: see also recognition of decisions of Member State courts, refusal of recognition, grounds (Brussels IIa 22 and 23/MR 24/SR 40) SR 35/Recital 58, 300–1 grounds/requirements exceptional circumstances, 288 infringement of the principles of equality, non-discrimination and freedom of religion (IDI Resolution on Cultural Differences) (2005), 20 manifest incompatibility with the public policy of a state (Brussels Ia 45(1)(a)/ Brussels IIa 22(a) and 23(a)/Rome I 21/ Rome II 26/Rome III 12/MR 24(a)), 18, 288–9, 298–300, 310–11, 316 result-based applicability, 289 jurisprudence Eco Swiss, 292 Gambazzi, 291 Hoffmann, 288 Krombach, 291, 311–12, 380n38 Trade Agency, 226, 227, 311 objectives as foreign law safety-net, 288: see also foreign law, proof of protection of culture, 16, 18–20, 288 restrictions on application, proposals for abolition of procedural public policy, 226 arguments against, 293 limitation of applicability to where parties so request, 292, 293 removal for intra-EU cases, 292–3, 294–8, 300–1 ‘softening’ in intra-EU cases (ordre public attenué), 292–3 risk to fundamental principles of PIL, 288–9 mutual trust principle, 313, 578, 579, 581 questionnaire see EUFam’s Project questionnaire (2017) recognition of decisions of Member State courts definition/characteristics automaticity, 223 extension-of-effects doctrine, 198–9, 223

930  Index enforcement procedures applicable law (Member State of enforcement (Brussels IIa 47(1))), 316 Brussels IIter proposals, 319 differing approaches to/means of reducing problems caused by, 317–18, 322–3 exequatur: see exequatur jurisprudence M v S, 317 ML and AL, 317, 318 two-track system (Brussels IIa 11), problems/rarity of use, 318–19 inclusion of issues not dealt with by the court of origin, treatment as a request for modification, 519 JCCM and (TFEU 81(1)), 164 judicial coordination, scope for, 880–1 as principal issue (Brussels IIa 21(4)/ MR 23(3)), 224 procedure, 223 provisional measures, applicability to: see provisional and protective measures (Brussels IIa 20) refusal of recognition, grounds (Brussels IIa 22 and 23/MR 24/SR 40): see also res judicata; return of the child child’s right to be heard, breach (Brussels IIa 23(b)), 228–30, 308–10, 321, 498–9: see also child’s right to be heard default judgments following failure to serve documents (Brussels IIa 22(b) and 23(c)/MR 24(b)/SR 40(b)), 227, 313–14, 499–500 exhaustive nature of Brussels IIa/MR/ SR provisions, 225 irreconcilability of decisions (Brussels IIa 22(c)-(f) and Brussels IIa 23(e)-(f)/ MR 24(c)-(d)/SR 40(c)-(d)), 227–8, 314–15, 500 jurisdiction of court of origin, as closed question, 225 lis pendens rule, decisions in breach of, 37–8, 314–15, 481n90 public policy (procedural), 226, 290–1, 311–12 public policy, rarity of resort to, 310–11, 313, 499 public policy (substantive), 225–6, 312 review of the merits, exclusion (Brussels IIa 26), 228, 290 registered partnerships: see MPRR (2016)/ PCRPR (2016); PCRPR (2016); same-sex marriage

renvoi exclusion HCPC 21(1), 266 HMP 12/MR, 240 MPRR/PCRPR, 32, 240 Rome I 20, Rome II 24, Rome III 1), 50–1 HCPC 21(2) (exception to HCPC 21(1) exclusion), 266–7 in Spain, 624 SR, 34, 240–1, 623 res judicata: see also lis pendens applicability to private divorce, 224, 225 applicability to procedural decisions, 197–9 limitation to operative part vs grounds for decision, 197–9 SR and (SR 7(a)), 197–9 burden of proof, 225 definition/requirements, extension-of-effects doctrine, 198–9, 223 jurisprudence Arnold v NatWest, 223n2 Gothaer, 197–9 Hoffmann, 198, 223 Liberato, 532–3 object and purpose access to justice (TFEU 67(4)), 164 prevention of reassertion of a cause of action already adjudicated, 223 prevention of unsuccessful party from disputing decisions of law [or fact] in a related case, 223–4 procedure account of hearing/weight accorded to child’s view, inclusion in judgment/ certificate accompanying judgment, 230 court’s right to raise ex proprio motu, exclusion, 224 determination of compliance with the requirements for automatic recognition in the relevant Regulations, 224 determination of preclusive effects in the Member State of origin, 224 reservations, complexities introduced by, 545 residence, right of (TFEU 21/CRD) departure or death of EU citizen (CRD 12), 367–8 ‘departure’ (CRD 16(3)), 368 dependence of free movement on, 363: see also free movement of persons divorce/dissolution of family ties (CRD 13), 363–4, 366–7

Index  931 restrictive interpretation, risk of conflict with Brussels 3(1)(a) and (b) (jurisdiction), 368 habitual residence distinguished, 361: see also habitual residence jurisprudence Ahmed, 366 Akrich, 363 Baumbast, 364 Commission v Belgium (Case C-408/03), 364 Croatian courts, 364 Dano, 368 Kuldip Singh, 364, 367–8 Levin, 368 LN, 368 Mikołajczyk, 366 NA, 367, 368 Ninne-Orasche, 368 O, 363 Ogieriakhi, 366 S, 363 Zhu and Chen, 364 permanent residence, right of (CRD 16–21), 349 loss of, grounds, 349 proof of, 360–1 protection against expulsion /best interests of the child (CRD 26(3)(b)), 369 third country nationals (family members), 7–8, 348–9, 350 difficulties of establishing family status, 365 marriages of convenience, 363–4 risks of abuse, 363–4 third country nationals (non-family members) (immigration/asylum policy) (CRD 7), 349, 364–5 loss of right, 353 MR (2009) and, 364–5 workers, self-employed persons or persons with sufficient resources not to be a burden, 348 source of resources, 364–5 residual jurisdiction (Brussels IIa 14), 62, 480 return of the child (recognition and enforcement of court order) (Brussels IIa 42/ HCAC): see also child abduction; custody rights arrangements as protection specifically against grave risk requirement, 472–3 Brussels IIter Proposal/, proposed changes, 319, 602–4 establishment of habitual residence (Brussels IIa 11) as impediment to compliance with return order, 483–4

HCAC 13(1)(b) (non-return in case of grave risk)/Brussels IIa 11(4), interrelationship, 441–2, 470–5 appropriate arrangements, classification as (Brussels IIa 11(4)), 472–5 arrangements as protection specifically against grave risk requirement, 472–3 Brussels IIter 27(5), relevance, 474–5 Brussels IIter Recitals 45 and 46, 473–5 interrelationship, failure to acknowledge, 441–2, 510 mediation, role, 316 opportunity for the child to be heard (42(2)(a)) see child’s right to be heard primacy of the Regulation, 604–6 Romania Brussels I Regulation, date of applicability, 83 child’s right to be heard (Brussels IIa 42(2)(a)), 229 MPRR and, 107 Schengen area and, 350 Rome III (divorce) applicability conflict of laws, need for (Rome III 1(1)), 235–6 Member States’ right not to apply (Recital 26(2)/Rome III 13), 17–18, 57n29 private divorce, 15, 36, 55, 550 same-sex marriage/registered partnerships, need to clarify inclusion of, 832 application of the law of the forum (Rome III 10/Recital 24), 18–20 as cultural value judgment, 18–20 independence of public policy exception (Rome III 11), 18 mandatory nature of the law, 37 public policy exception (Rome III 12), sufficiency/preferability, 20, 296–7 application of the law of the forum (Rome III Recital 10 indent 3 (preliminary questions)), 50 as enhanced cooperation measure, 9n27, 16–17, 18, 19–20, 106, 113, 172, 253–5, 259, 293, 295, 297, 431, 463, 522, 634 foreign law, application and proof of, problems, 274, 278, 551–3 formal requirements (Rome III 7), 596–7, 635–6 informed choice (Rome III Recital 18) absence of a common standard, 597 Catalan practice, 597 divergent requirements of participating and non-participating States, 596–7 EU/national safeguards, possibility of, 597, 833 EUFam’s Policy Guidelines, 832–3

932  Index problems of arriving at, 250, 256–7, 597 timing of choice/prenuptial agreement, 250, 597–8 public policy exception (Rome III 12), 18, 20, 295–6 scope (included/excluded matters) consistency with Brussels IIa, 50, 55 ‘dissolution of matrimonial ties’ (exclusion of separation) (Recital 10), 244, 357, 366n76, 505–6 territorial conflicts of laws and (Rome III 14–16), 10, 283, 601 Rome III (divorce) (forum/ius harmonisation) choice of law agreement (Rome III 5(1)(d)), 738–9 constraints, 739 fragmentation of applicable law as impediment, 596 lack of Brussels IIa/Brussels IIter provision for choice of court agreement and, 184, 674–5, 678, 680–1, 687, 738, 739, 744, 753, 757–8 in unified divorce/separation and maintenance proceedings combination of MR 4(1)(c)(i), Rome III 5(1)(d) and HMP 8(1)(d) as means, 249–50, 742 constraints, 744–5 EUFam model clause, 742–5 EUFam’s model clauses, 753–8 in unified divorce/separation, property and maintenance proceedings combination of MR 4(1)(c)(i), MPRR 5, Rome III 5(1)(d) and HMP 8(1)(d) as means, 753–8 constraints, 754, 757–8 EUFam’s model clauses, 753–8 in unified divorce/separation and property proceedings combination of Brussels IIa 3/MPRR 5(1)/ Rome III 5(1)(d) in conjunction with MPRR 22 (connecting factors) as means, 750–3 constraints, 750, 753 EUFam’s model clauses, 750–3 Rome III (divorce) (parties’ choice of applicable law (Rome III 5)) as aid to flexibility and greater legal certainty (Rome III Recital 15), 246 applicability to pre-21 June 2012 agreements, 634n13 autonomy of the parties, as example of, 80418, 816n61 connecting factors (Rome III 5(1)) nationality (Rome III 5(1)(c)), 152, 156, 157

nationality (Rome III Recital 22) (multiple nationalities), 152, 157 options available to the parties, 13, 244, 634 scale of factors (Rome III Recital 21), 11 EUFam’s model clause, 635 formal requirements (Rome III 7), 635–6 forum shopping, risk of, 361–2 infrequency of use, 256–7, 596 timing of choice during proceedings (Rome II 5(3)), 244, 494, 598 prior to seisure of the court (Rome III 5(2)), 244 unification with the law applicable to spousal maintenance proceedings (HMP 8(1)(d)), EUFam’s model clause, 690–3 rush to a court contributory factors Brussels IIa lack of a choice of court option, 184, 674–5, 678, 680–1, 687, 738, 739, 744, 753, 757–8, 803 grounds of jurisdiction as alternatives/ lack of a hierarchy (Brussels IIa 3), 185, 802 jurisdiction provisions, inconsistencies between, 184, 185 protection against choice of law/choice of court clauses, 627, 803, 805 Rome III unification of law applicable to divorce and separation, 627n2 same-sex marriage Brussels IIa/Rome III, need to clarify inclusion of same-sex marriage/registered partnerships, 812 countries recognising, 53n4, 523–4, 550 as matter of national identity, 16 courts’ willingness to recognise registration of same-sex marriages celebrated abroad, 58 discrimination and, 57, 58, 77–9, 91 divorce, jurisdiction problems, 16, 57–8, 550 forum necessitatis option/exclusion from Brussels IIter/desirability, 57–8: see also forum necessitatis ECHR 8 (family and private life) and, 58 EUFam’s Policy Guidelines, 812–13, 832 forum necessitatis and, 57–9, 820–1 gender-neutral terminology, preference for, 58 Good Practices Conference’s discussion of, 590–2 jurisprudence Coman, 7–8, 9, 16, 78, 365, 590–1, 810, 812n38

Index  933 Maruko, 77 Orlandi, 58, 78 Pajić, 77–8 maintenance and, 76–9 applicability of heterosexual marriage rules, 76 HMC/HMP, applicability/need for uniform interpretation in favour of, 77–8 national law/policy as determining factor, 76 registered partnerships, differences of practice, 77 MPRR, applicability, 106n15 right of residence, possibility of abuse, 363 Schengen system, 347–8 free movement of persons under, 347–8: see also free movement of persons abolition of internal border checks (Schengen Borders Code 22), 348 ‘border checks’ (Schengen Borders Code 2(11)), 348 entitlement (Schengen Borders Code 22), 348 strengthening of external border checks (Schengen Borders Code 7–8), 348 Wijsenbeek, 348 ‘Schengen area’, 350 service of documents, failure to serve as ground for non-recognition of a default judgment (Brussels IIa 22(b) and 23(c)/MR 24(b)/SR 40(b)), 499–500 Slovakia Brussels I Regulation, date of applicability, 83 Brussels IIa examples of misapplication/reversion to national PILA, 524–5 non matrimonium/matrimonium nullum, applicability of Regulation, 525 Central Authorities, 401, 402 Civil Act 2012, scope, 523 compliance with EU Regulations/treaties, obstacles, translation problems, 521, 523n13, 534–6 Constitution by article 7(2) (primacy of EU law), 522 7(5) (primacy of treaties), 522–3 41 (definition of marriage), 523–4 custody rights, 527, 530, 535–6, 538–40 enhanced cooperation and, 522 EU law, primacy, 522–4, 539–40 EUFam’s project in, 521–41 cases included in, 522 conclusions from, 541–2 reasons for inclusion, 521–2 EUFam’s project in, issues addressed by Brussels IIa, application, 525–33

fragmentation of jurisdiction, 538–40 HMP, application, 537–8 MR, application, 533–7 Family Act 2005, scope, 523 Family Act 2005 by article 1 (definition of marriage), 523–4 24(1) (responsibility for custody/custodial duties), 538–40 foreign law, 275, 280 fragmentation of jurisdiction, examples, 538–41 habitual residence of children, 124, 126 dual habitual residence, 130–1, 525–7 factors considered, intention, 525 failure to follow CJEU criteria, 528 as jurisdictional ground in place of nationality, 523 misapplication of Brussels IIa 3(1)(a) and 8 (jurisdiction), 527–8 PILA Explanatory Memorandum (2003) as guide, 525–7 place of work/study, 525 residence during major part of the year, 525 HMP, failure of courts to recognise its role in the determination of the applicable law (MR 15/HMP 1(1)), 537–8 international family law and succession law applicable in Slovakia (treaties, EU Regulations, legislation), 522–4 primacy of treaties/EU Regulations (PILA 2)/ examples, 522–3 judicial organisation/procedural matters, 523 lis pendens in Czech–Slovak disputes, 536–7 MPRR and, 107 MR 3 (jurisdiction) acceptance of jurisdiction by appearance (MR 5), 529–30, 536 mistranslation of ‘defendant’ (MR 3(a)), 534–6 MR 26, 28 and 29 (recognition and enforceability of decision), 537 parental responsibility, jurisdiction based on child’s presence (Brussels IIa 13), 530–1 PILA 1963 by article Note: The dates on which an article under discussion was introduced/amended are shown in square brackets 2 (primacy of treaties), 523 21(1) (divorce: applicable law), 522 21(2) (matrimonial property: applicable law), 522 24 (child maintenance: habitual residence of child) [2003], 523 24 (parental responsibility: habitual residence of child) [2003], 523

934  Index prorogation of jurisdiction applicability of Brussels 12(3) to autonomous proceedings, 530 form and time of acceptance of jurisdiction, 529–30 registered partnership, proposals for recognition of, 524 return of the child/child’s right to be heard, 528–9 same-sex marriage, 223–4 Slovenia Brussels I Regulation, date of applicability, 83 foreign law, 275, 280 same-sex marriage, 53n4 social issues: see family-related migration South Africa, same-sex marriage, 53n4 Spain Autonomous Communities [territorial units], applicable law (HCPC 47–8/MPRR and PCRPR 33/Rome III 14–16), 10, 269, 545–6, 601 child’s right to be heard (Brussels IIa 42(2)(a)), 229, 309 choice of law agreement, absence of provision for, 598 Civil Code by article 9 (applicable law: individual), 544 9(4) (applicable law: international adoption), 548, 554 9(7) (applicable law: maintenance), 554, 555 12(6) (ex officio application of Spain’s law of conflicts), 551–2 14 (applicable law: internal conflicts), 556 16(3) (applicability of CC 9 PIL rules to inter-regional conflicts/vecindad civil as connecting factor), 544–5 90–101 (effects common to annulment, separation and divorce), 548 92(5) (shared custody), 548–9 107 (law applicable to nullity, separation and divorce), 544, 556 154 (parental authority), 548 156 (parental authority: joint exercise), 548 222(a) (guardianship: non-emancipated minors), 548 Civil Procedure Act by article, 281(2) (proof of foreign law), 551–2 Constitution by article 24 (effective remedy), 551 149(1)(6) (PIL: Spanish State’s exclusive competence), 545 149(1)(8) (state/autonomous authorities, competences), 545 custody rights/rights of access, 548–9 divorce statistics, 543

divorce/separation/annulment proceedings, 54–5 conflict between Italian law and Brussels IIa Recital 8 (limitation of applicability), 54, 549–50 primacy of EU law, 550–1 EU PIL, compliance, problems/inconsistencies, areas of difficulty application of rules on jurisdiction and applicable law distinguished, 557–8 application/proof of foreign law, 557–8 examples of misapplication/failure to apply, 550–1 fragmentation of EU PIL in face of Spanish law’s unified approach, 546–7 EU PIL, compliance, problems/inconsistencies, contributory factors absence of preliminary references/reasons for, 557 fragmentation/overlap and contradiction, 557 EUFam’s project, 543–58 cases included in, 544 Regulations considered/excluded, 544 summary of conclusions from, 544, 557–8 EUFam’s project in, reasons for inclusion, 461 EUFam’s project, issues addressed by complexities of Spanish system, 545–7 family matters, procedural issues including conflict with EU PIL, 545–9 maintenance matters, 555–7 matrimonial matters, 549–53 parental responsibility, 548–9, 554–5 Spanish judiciary, pluses and minuses, 547–8 family dispute settlement, overview, 545–9 family matters and succession, law applicable between territorial units (Autonomous Communities) (HCPC 47–8), 545–6 confused implementation of, 546, 548–9 foreign law conflict between Civil Code and Civil Procedure Code, 551–2 difficulties of application/proof, 277–8, 279, 284, 285, 551–3, 557–8, 601 EU PIL’s preference for the lex fori as mitigation of the problems, 552 role of the judge, 279 treatment as part fact/part law (hybrid system), 276 habitual residence, 123 international family law and succession law applicable in Spain (treaties, EU Regulations, legislation)/complexities, 545 existence of Spanish reservations, 545

Index  935 federal/multi-state system, 545 multiplicities of instruments, 545 International Legal Cooperation Act 2015 by article, 33–6 (proof of/information about foreign law), 552 judicial organisation, 547–8 Constitutional Court, role, 547 lack of specialised judges/Network of Experts in EU law, 547–8 Judiciary Law 1985 as amended by article 22bis (jurisdiction: forum selection), 543–4 22ter (jurisdiction: domicile), 543–4 22quáter (jurisdiction: family matters), 543–4, 548 maintenance obligations, problems/ inconsistencies in complying with EU PIL ‘compensation’ (CC 97) as maintenance, 549 continued interpretation of obligations by reference to Civil Code, 555, 556–7 modification of decision, limitations (MR 8), 555 matrimonial property law, 56n22 MR 9(1) (applicable law: effects of the marriage, separation and divorce), 556 national PIL rules (Law on the Judiciary/Civil Code 9 and 12), 543–4 notaries’ role, 592, 813 parental responsibility, conflict of national law concepts with EU PIL, 548–9 guardianship of a child, 548 shared custody, 548–9 parental responsibility, courts’ record of conformity with applicability of habitual residence, 554 Brussels IIa jurisdiction, 554 HCPC jurisdiction, 554 Parliament’s responsibilities, 545–7 private divorce, 170, 550, 590, 592 recognition of decisions of Member State courts, 229 registered partnerships, 110n6 renvoi, 623 Rome III, application, 551–3 informed choice (Rome III Recital 18) (Catalan practice), 597 same-sex marriage, 53n4, 550 SR (personal/temporal scope), 101–2 spousal maintenance: see maintenance (spousal) SR (2012)/succession matters: see jurisdiction (family and succession matters); SR (2012); SR (2012), applicable law; SR (2012), forum/ius harmonisation (Gleichlauf); SR (2012) (habitual residence); SR (2012) (jurisdiction (SR 4–19))

SR (2012) AFSJ considerations (SR Recital 1), common rules (SR Recitals 3–8) (Tampere), 189 applicable law, universal application (SR 20), public policy exception (SR 35/ Recital 58), 300–1 cooperation mechanisms, inadequacy, 810 ‘court’ (SR 3(2)), 143n44, 190 free movement of persons and (SR Recital 23), 356, 357 habitual residence: see SR (2012) (habitual residence) JCCM, absence of provision for/desirability, 193 judicial coordination, examples of provisions appropriate for, 862–4 maintenance obligations arising on death applicable law (SR 23(2)(h)), 88 definition, 88 determination of obligations, division of responsibilities between MR and SR, 97 material scope (excluded matters (SR 1(2))), 69–70 as exhaustive list, 94n4 formal validity of oral dispositions (SR 1(2)(f)), 94 legal capacity of natural persons (SR 1(2)(b)), 69–70 maintenance obligation other than those arising on death (SR 1(2)(e)), 87–8 matrimonial property regimes (Recital 12/ SR 1(2)(d)), 87, 97–9 nature of rights in rem (SR 1(2)(k)), 95–7 public matters (revenue, customs, or administrative matters) (SR 1(1)), 94 registration of rights in immovable or movable property (SR 1(2)(l)), 95–7 status of natural persons and family relationships (SR 1(2)(a)), 69–70 wills and succession (Brussels Convention 1(1)), 99 material scope (SR 1) ‘all civil-law aspects of succession to the estate of a deceased person …’ (Recital 9), 94 ‘succession’ (definition) (SR 3(1)(a)), 93–4 ‘succession to the estates of deceased persons’ (SR 1(1)), 93–4 material scope (SR 1), jurisprudence CHW v GJH (‘wills and succession’), 99 Kubicka (legacy by vindication/damnation) (SR 1(2)(k) and (l)), 94–7, 621, 840–1 Mahnkopf (relationship between MPRR and SR), 87, 97–9, 234, 621, 840 Matoušková (Brussels IIa 1(1)(b) vs IIa 1(2) (e)), 69–70, 99–100 mutual trust principle and, 197, 199

936  Index nationality as connecting factor applicable law (SR 22(1)(b)), 156, 705, 710–33, 760–5 determination (multiple nationalities) (SR Recital 41), 152 parallel proceedings involving, 216 personal scope (applicability to UK citizen), 100–1, 622, 835–6 primacy over domestic law, 148–9 procedural and substantive law, parallelism, 189 renvoi (SR 34), 240–1, 623 rights in rem, adaptation (SR 31), 96–7 scope (UK, Ireland, Denmark), EUFam’s Policy Guidelines, 835–6 temporal scope (SR 84) applicability to post-17 August 2015 choice of court agreements, 657 choice of law (SR 83(4)), 101–2, 622–3 entry into force vs date of application, 100 exceptions (SR 77–81), 101 territorial scope, exclusion of Ireland (Recital 82) and Denmark (Recital 83), 93, 835–6 transitional provisions, EUFam’s policy guidelines (difficulty of interpreting) recommendation, 838 SR 83(2)/SR 83(3), 836–7 SR 83(4), 837 unity of succession, 133–4, 165n22, 449 SR (2012), applicable law choice of law agreements, applicable law (SR 25(3)), 663–5, 666–9 EUFam’s model clauses, 663–5, 667–9 formal requirements (SR 22(3)), 668 choice of law (disposition on death (SR 23(2))) admissibility and substance, limitation to, 662 EUFam’s model clause, 662–3 choice of law (disposition on death (SR 24(2))), 662–3 admissibility and substance, limitation to, 663 EUFam’s model clause, 662–3 choice of law (disposition on death (SR 24(2) and succession as a whole (SR 22))), 665–6 EUFam’s model clause, 666 choice of law (succession as a whole (SR 22)/ disposition of property (SR 24(2))/ property regime (MPRR and PCRPR 22(1)(b))) (EUFam’s model clauses), 718–27 different nationalities of spouses/partners, 723–7 same nationalities of spouses/partners, 719–23

choice of law (succession as a whole (SR 22)/law applicable to succession agreements (SR 25(3))/property regime (MPRR and PCRPR 22(1)(b))) (EUFam’s model clauses), 727–37 different nationalities of spouses/partners, 733–7 same nationalities of spouses/partners, 728–33 choice of law (succession as a whole (SR 22)/ property regime (MPRR and PCRPR 22(1)(b))) (EUFam’s model clauses), 709–18 constraints, 714 different nationalities of spouses/partners, 714–18 same nationalities of spouses/partners, 710–14 choice of law (succession as a whole (SR Recitals 38, 39, 38 and 40/SR 22)), 660–2, 839–41 EUFam’s model clause, 661 formal requirements (SR 22(2)), 661–2 general rule (SR 21), habitual residence at the time of death (SR 21(1))/exception (SR 21(2)), 494–5 scope (SR 23) admissibility and substantive validity, limitation to, 663 EUFam’s Policy Guidelines, assessment/ recommendation, 840–1 maintenance obligations arising on death (SR 23(2)(h)), 88 property/family and succession law, conflict, 840–1 SR 23(2)(e) and SR 1(2)(l), potential for conflict, 96–7 transfer to heirs/legatees of assets, rights and obligations (SR 23(2)(e)) (excluding any effect on numerus clausus rules (Recital 15)), 96–7 unification of law (MPRR and PCRPR 22(1)(b)/ SR 22 (EUFam’s model clauses)) constraints, 714, 718 different nationalities of spouses/partners, 714–16 same nationalities of spouses/partners, 710–14 unification of law (Rome III 5/HMP 8/ MPRR 22/SR 22/SR 25 (EUFam’s model clauses)), 705–9 universal application (SR 20) ‘whether or not it is the law of a Member State’, 100, 201

Index  937 SR (2012), forum/ius harmonisation (Gleichlauf) deceased’s choice of law/parties’ right to choose court (SR 5(1)) as means, 191–3, 758–9 choice of law of a third state, effect, 759n161 EE, 139n27, 759n161 express agreement of the parties (SR 7(c)), need for, 191–2, 623 formal requirements (SR 5(2)), 191–3 EUFam model clauses (succession) in absence of choice of law (SR 4/SR 21), 759, 759n161 in case of choice of law of Member State (SR 5/SR 22), 759–60 in case of choice of law of third state (SR 5/SR 22), 759n161 EUFam model clauses (succession and property) constraints, 763, 765, 770 spouses/parties of different nationality, 765–70 spouses/parties of same nationality (MPRR/PCRPR 4 and SR 22(1)(b)), 760–5 spouses/partners with same habitual residence (MPRR/PCRPR 22(1)(a) and SR 21), 761 forum/ius harmony as primary SR goal (Recitals 27 and 28), 165, 189, 191, 193, 195–6, 201, 657 habitual residence as a connecting factor for both the applicable law and jurisdiction (SR Recital 23), importance as unifying factor, 133–5, 147, 189, 494–5, 759 SR (2012) (habitual residence), 133–50 advantages, 145–9 avoidance of need to apply foreign including Islamic law, 146 compliance with proximity principle, 146–7 counter-arguments/alternatives, 147–50 promotion of free movement and integration, 146 scope for harmonisation of succession and matrimonial property regimes, 147 applicability of principle acceptance or waiver of succession (SR 13/SR 28), 139n28 applicability to both applicable law and procedure, parallelism, 189 applicable law (Recitals 25, 33 and 51/SR 6 and 21), 139n28, 141, 147, 189, 494–5 jurisdiction (SR 4), 93, 126, 139n28, 141, 147, 189–91 definition/characterisation: see also habitual residence, as factual/non-legalistic concept as an SR cornerstone, 133–4

deliberate avoidance of definition, 135, 136, 189 as factual/non-legalistic concept (SR Recitals 23 and 24), 121–2, 134–5 impossibility/disadvantages of a legal definition, 136 interrelationship between EU regulatory instruments, 136–8, 144–5, 490–1 national and international conventions distinguished, 133–4 non-transposability of CJEU jurisprudence from one area of EU law to another (A), 121, 136n14, 137–8 objective element (physical link with territory) coupled with subjective link (intention (animus manendi)), need for, 134 determination of habitual residence, criteria/ methodology case-by-case approach, 144–5 close and stable connection with the state concerned, 140 difficulty of, 451–4, 490–1 dispersion of contacts, difficulties caused by, 144–5 examples, 141–3 proximity principle alternative, 141 quantitative grouping of contacts vs weighing of contacts, 140–1 Recital 24 guidelines, 141–3 relevance to the specific aims of the Regulation, 140 determination of habitual residence, criteria/ methodology (EUFam’s practice), 143–5: see also habitual residence of children (CJEU jurisprudence); habitual residence of children (factors considered by national courts including those in addition to CJEU factors) cases relating to habitual residence/absence of ‘foreign’ contacts, 143 habitual residence of a child/minor, 144 habitual residence of a spouse, 144–5 jurisprudence on other EU Regulations on family and personal matters, relevance, 144–5, 190 limited SR jurisprudence, reasons for, 143, 188–9, 190 dual habitual residence, possibility of (including Recitals 23 and 24), 130–1, 148–9 relevant factors for establishing the habitual residence of a deceased person, suggestions, 139–43, 453–6 applicability to related heirs and legatees, 138n28

938  Index citizenship and domicile, 140 duration/temporal element, 139n30, 141 family and personal ties vs work ties, 139–40, 189 location of assets, 140 relevant factors (Recital 23) (method, content and purpose) consistency with current practice (duration and characteristics of stay/intention), 138n27, 623 dependence on the centre of one’s social life, 491 global assessment of deceased person’s life prior to/at time of death, 139, 490 proximity principle as basis, 139, 141 relevant factors (Recitals 23 and 24 guidance), 121–2, 138–43, 189–90 EUFam’s Policy Guidelines’ assessment/ recommendation, 838 Recitals as addition during negotiations/ reason for, 137–8 SR (2012) (jurisdiction (SR 4–19)) avoidance of duplication, 624 choice of court (SR 5), 191–3 ‘by parties concerned’ (SR 5(1)), 191 EUFam’s model clauses, 659–60, 688–90 exclusive jurisdiction requirement (SR 5(1)), 659 formal requirements (SR 5(2)), 191, 660 jurisdiction based on appearance and (SR 9), 118, 193 choice of court (SR 5), difficulties applicability to non-contentious proceedings, 192 distinguishability of formal agreement (SR 5(1) and express agreement of the parties (SR 7(c))), 191–2, 623 ‘interested parties’, problems associated with determining, 191, 192 ‘jurisdiction based on appearance’ (SR 9) as response to, 118, 193 ‘signature’ in case of electronic agreement, 191, 192 conflicts of jurisdiction (positive vs negative), 196–9 definitions, 197 Gothaer (negative conflicts) (Lugano Convention II), 198–9 lis pendens/res judicata as means of resolution, 197–9: see also res judicata ‘cross-border’ succession matters, absence of definition, 450–1 decline of jurisdiction at the request of a party in the event of (SR 6(a)), 191 judicial coordination, scope for, 877

ECS (SR 62–73) obligation to provide on request (SR Recital 72), 622 UK citizen’s entitlement to, 622 ECS (SR 62–73)/domestic certificates (applicability of SR 4), 193–6, 454–5 CJEU’s conclusions, 195–6 conflict of requirements with national law, 496 EUFam’s Policy Guidelines, 837 Oberle, 93, 194–6, 621, 839 pros and cons of retaining domestic jurisdiction rules, 194 general jurisdiction (SR 4), 189–91: see also ECS (SR 62–73)/domestic certificates (applicability of SR 4) above extension to domestic succession disputes, 191 habitual residence [‘at the time of death’] (SR 4(1)), 126, 193 judicial coordination (SR 10), 874 jurisdiction of courts of Member State whose law has been chosen/parties’ express agreement (SR 7(c)), 191–2, 623 nationality of the deceased as a jurisdiction criterion (SR 10(1)(a)), 155 seisure of a court, 450 subsidiarity principle (TEU 4(3)), 6, 355–6, 809 surrogacy, child maintenance and, 75 Sweden enhanced cooperation and, 19, 103 foreign law, 275, 277, 279 Islamic marriages, 19n63 jurisdiction (divorce) (Sundelind), 168 registered partnerships, 110n6 same-sex marriage, 53n4 Switzerland Brussels II 19 (non-applicability), 494 HCPC and, 604–5 HDC and, 337n12 HMC (1956), 387, 390, 444 HMC (1973), 387 HMC (1973)/HMP 2007 and, 391–2 HMC (2007)/HMP (2007) interface, 616 HMC, absence of ratification, 336n10, 342 HMC and, 336, 342 HMP and, 387, 390 LC and, 333 Schengen area and, 350 Syria, divorce in, 33–7 territorial conflicts of laws: see federal/ quasi-federal states

Index  939 transfer of jurisdiction (Brussels IIa 15) (forum non conveniens), 442–3 applicability to maintenance claims, 187–8, 332–3, 807–8 ‘best interests of the child’ requirement, 442, 805 Brussels IIter Proposal, 481, 532, 605–6 difficulty/rarity of use, 826 EUFam’s Policy Guidelines, 805–6, 807–8 EUFam’s recommendations, 826–7 failure to meet Brussels IIa 15(3)(b) and (e) conditions, 480 Brussels IIter 13 compared, 481, 532 judicial coordination, scope for, 877 transfer by a non-competent court (KS), 480–1 transfer of jurisdiction (HCPC 8(2)(a)/ HCPA 8(2)(a)) (best interest of the child), 155–6, 339 translation problems, 214, 408, 458, 464, 521, 523n12, 534–6, 540, 618, 619–20 treaties, impact of EU regulation on, 9–10 Holy See concordats (Brussels IIa 63(1)), 10 Turkey family law, 31 HMC 2007/HMP (2007), 616 HMC (1956) and, 387, 390 HMC (1973) and, 387 HMC (1973)/HMP (2007), 392 HMC (2007) and, 73, 390, 444 VCLT and, 389 United Kingdom: see also Brexit arranged transnational marriages, 28–9 Brussels I, date of entry into force, 83 Central Authorities, 400–2 domicile, use in preference to ‘habitual residence’, 252, 312, 590n7, 780, 815n5552 ESCs and, 622 exequatur requirement, 306, 387, 498, 531 foreign law, 276, 277, 279, 280, 281, 282, 283 forum necessitatis, 328 forum non conveniens doctrine, 220, 605 habitual residence of children, 128 HCAC as basis of UK–EU relationship post-Brexit, 341–2

HCPC and, 554 HDC and, 337–8 HMC as likely basis of UK–EU child maintenance relationship post-Brexit, 335–6, 620 HMP and, 10, 73, 81, 181, 244, 254, 644 LC as likely basis of UK–EU non-child maintenance relationship post-Brexit, 333 lis pendens (third state proceedings), 215–16, 620 matrimonial property regimes (England and Wales), 85, 104–5 MPRR and, 107, 254 MR and, 81, 181, 185 PCRPR and, 113 registered partnerships, 110n6 res judicata, 223n2 Rome III and, 254 same-sex marriage, 53n4, 550 Schengen area and, 350 SR and, 10, 93, 100, 134n4, 657, 835–6 UNCRC and, 608 United States, same-sex marriage, 53n4 universal application of EU Regulations, 100, 201 universal civil jurisdiction definition, 327 forum necessitatis distinguished, 327 IDI Tallin Report, 328 Uruguay, same-sex marriage, 53n4 vulnerable persons, definition, HMP 8(3), 394n63 ‘weaker party’ concept/examples asymmetrical jurisdiction clauses, 641–3 choice of law after the event (Rome II 14), 598 definition/scope, 165 maintenance (EAPO), 89, 534 maintenance (MR Recital 12), 165, 182, 187, 200, 808, 833–4 matrimonial matters, 165, 313, 366 public policy, risk of conflict with, 313

940