Case C‑501/20

MPA

v

LCDNMT

(Request for a preliminary ruling from the Audiencia Provincial de Barcelona)

Judgment of the Court (Third Chamber), 1 August 2022

(Reference for a preliminary ruling – Judicial cooperation in civil matters – Jurisdiction, recognition and enforcement of decisions in matrimonial matters and in the matters of parental responsibility – Regulation (EC) No 2201/2003 – Articles 3, 6 to 8 and 14 – Definition of ‘habitual residence’ – Jurisdiction, recognition, enforcement of decisions and cooperation in matters relating to maintenance obligations – Regulation (EC) No 4/2009 – Articles 3 and 7 – Nationals of two different Member States residing in a third State as members of the contract staff working in the EU Delegation to that third State – Determination of jurisdiction – Forum necessitatis)

1. Judicial cooperation in civil matters – Jurisdiction, recognition and enforcement of decisions in matrimonial matters and in the matters of parental responsibility – Regulation No 2201/2003 – Jurisdiction, applicable law, recognition and enforcement of decisions in matters relating to maintenance obligations – Regulation No 4/2009 – Concept of habitual residence – Criteria for assessment – Spouses allegedly enjoying diplomatic status as members of the contract staff working in the EU Delegation to a third State – Irrelevant

   (Hague Protocol of 23 November 2007, Art. 3; Council Regulations No 2201/2003, Art. 3(1)(a), and No 4/2009, recital 8 and Art. 3(a) and (b))

   (see paragraphs 41-47, 49, 53, 66, operative part 1)

2. Judicial cooperation in civil matters – Jurisdiction, recognition and enforcement of decisions in matrimonial matters and in the matters of parental responsibility – Regulation No 2201/2003 – Jurisdiction in matters of parental responsibility – Concept of ‘habitual residence of the child’ – Criteria for assessment – Mother’s nationality and her residence, prior to the marriage, in the Member State of the court seised – Irrelevant – Minor children born in that Member State and holding the nationality of that Member State – Insufficient fact

   (Council Regulation No 2201/2003, recital 12 and Art. 8(1))

   (see paragraphs 71, 72, 75, 78, operative part 2)

3. Judicial cooperation in civil matters – Jurisdiction, recognition and enforcement of decisions in matrimonial matters and in the matters of parental responsibility – Regulation No 2201/2003 – Residual jurisdiction – Scope – Defendant in the main proceedings being a national of a Member State other than that of the court seised – Exclusion of the residual jurisdiction of that court in matrimonial matters – Irrelevant in matters of parental responsibility

   (Council Regulation No 2201/2003, Arts 3 to 6, 7(1) and 8 to 14)

   (see paragraphs 81-85, 89-91, 96, operative part 3)

4. Judicial cooperation in civil matters – Jurisdiction, applicable law, recognition and enforcement of decisions in matters relating to maintenance obligations – Regulation No 4/2009 – Jurisdiction in matters relating to maintenance obligations – Forum necessitatis – Applicability – Conditions

   (Charter of Fundamental Rights of the European Union, Art. 24(2); Hague Convention of 23 November 2007; Council Regulation No 4/2009, recital 16 and Arts 3 to 7)

   (see paragraphs 99, 101, 105-111, 113, operative part 4)

Résumé

The Court provides clarification as to jurisdiction in matters of divorce, parental responsibility and maintenance obligations

It further sets out the criterion of ‘habitual residence ’ which determines the court having jurisdiction in civil matters

In 2015, two members of the contract staff of the European Commission, who were previously resident in Guinea-Bissau, moved to Togo with their minor children on account of their assignment to the EU delegation to that third State. As the mother is a Spanish national and the father a Portuguese national, the children, born in Spain, have dual Spanish and Portuguese nationality. Since the couple’s de facto separation in 2018, the mother and the children have continued to reside in the matrimonial home in Togo and the father has lived in a hotel in that State.

In 2019, the mother brought divorce proceedings before a Spanish court, together with, inter alia, applications for the determination of the arrangements for exercising custody and parental responsibility in respect of the couple’s minor children, as well as maintenance payments for them. However, that court declared that it lacked territorial jurisdiction since, in its view, the parties did not have their habitual residence in Spain.

On appeal by the mother, the Audiencia Provincial de Barcelona (Provincial Court, Barcelona, Spain) decided to refer several questions to the Court of Justice for a preliminary ruling in order to enable it to rule, in the light of the particular situation of the spouses and their children, on the jurisdiction of the Spanish courts under Regulations No 2201/2003 ( 1 ) and No 4/2009. ( 2 )

In its judgment, the Court clarifies the factors relevant to the determination of the habitual residence of the parties which is set out as a criterion for determining jurisdiction in those regulations. It also sets out the conditions under which a court seised may recognise its jurisdiction in matters relating to divorce, parental responsibility and maintenance obligations where no court of a Member State usually has jurisdiction.

Findings of the Court

The concept of the ‘habitual residence’ of the spouses, which is set out in the alternative heads of jurisdiction provided for in Article 3(1)(a) of Regulation No 2201/2003, must be given an autonomous and uniform interpretation. It is characterised not only by the intention of the person concerned to establish the habitual centre of his or her life in a particular place, but also by a presence which is sufficiently stable in the Member State concerned. The same definition also applies to the concept of ‘habitual residence’ in matters relating to maintenance obligations, within the meaning of the criteria for jurisdiction under Article 3(a) and (b) of Regulation No 4/2009; that definition must be guided by the same principle and characterised by the same elements as in the Hague Protocol on the Law Applicable to Maintenance Obligations. The status of the spouses concerned as members of the contract staff of the European Union, who are part of an EU delegation to a third State and who are alleged to enjoy diplomatic status in that third State, is not capable of constituting a decisive factor for the purposes of determining habitual residence within the meaning of the aforementioned provisions.

As to the habitual residence of the child, within the meaning of Article 8(1) of Regulation No 2201/2003 in matters of parental responsibility, this is also an autonomous concept. It requires, at the very least, physical presence in a given Member State which is not in any way temporary or intermittent and reflects some degree of integration of the child into a social and family environment. In that regard, the connecting factor of the mother’s nationality and her residence, before her marriage, in the Member State of the court seised in matters of parental responsibility is not relevant for the purposes of recognising the jurisdiction of that court, whereas the fact that the minor children were born in that Member State and have the nationality of that Member State is insufficient.

That interpretation of the concept of ‘habitual residence’ could lead, in the light of the facts of the case, to no court of a Member State having jurisdiction, under the general rules on jurisdiction contained in Regulation No 2201/2003, to rule on an application for the dissolution of matrimonial ties and in matters of parental responsibility. In such a case, Articles 7 and 14 of that regulation may allow a court seised to apply, in respect of each matter, the rules on jurisdiction under domestic law, albeit with a different scope. In matrimonial matters, such residual jurisdiction of the court of the Member State seised is excluded where the defendant is a national of another Member State, without, however, preventing the courts of the latter Member State from having jurisdiction under its domestic law. By contrast, in matters of parental responsibility, the fact that the defendant is a national of another Member State does not prevent the court of the Member State seised from recognising its jurisdiction.

Another framework is laid down in matters relating to maintenance obligations, where all the parties to the dispute do not habitually reside in a Member State. In that case, Article 7 of Regulation No 4/2009 lays down four cumulative conditions to be satisfied in order for a court of a Member State seised of an application relating to maintenance obligations to be able, on an exceptional basis, to establish that it has jurisdiction by reason of the state of necessity (forum necessitatis). First, the court seised must find that no court of a Member State has jurisdiction under Articles 3 to 6 of Regulation No 4/2009. Second, the dispute in question must be closely connected with a third State, which is the case where all the parties habitually reside there. Third, the condition that the proceedings in question cannot reasonably be brought or conducted or would be impossible in that third State requires that, in the light of the particular case, access to justice in the third State must be, in law or in fact, impeded, inter alia by procedural conditions that are discriminatory or contrary to the guarantees of a fair trial. Lastly, the dispute must have a sufficient connection with the Member State of the court seised, which connection may consist, inter alia, of the nationality of one of the parties.

( 1 ) 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 (OJ 2003 L 338, p. 1).

( 2 ) 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 (OJ 2009 L 7, p. 1).