Treaty on European Union (
Treaty establishing the European Community (Amsterdam consolidated version) (
Convention of
Council Regulation of
Council Regulation of
On its period of validity, see point 27 of this Opinion.
For example, in relation to the dual nationality of a spouse. Judgment of
In relation to succession, judgment of
In matters relating to divorce, legal separation or marriage annulment, jurisdiction shall lie with the courts of the Member State: the spouses are habitually resident, or the spouses were last habitually resident, in so far 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 …
The family home was located in Ireland, where the family had settled in 1999 and had purchased a property that was their marital home; the children also resided in Ireland and studied there. No separation had occurred between the spouses and nothing indicated that they had a common intention to transfer their home to France. By contrast, many facts existed which confirmed Mr IB’s personal and family ties with Ireland, to which country he went each weekend in order to join his wife and children and to engage in sporting and leisure activities on a regular basis. In the six months prior to the filing of the application (therefore, after Mr IB’s ties with Ireland do not rule out his having ties with France, to which country he has, since 2017, travelled every week to work. Mr IB in fact has two residences: one, during the week, in Paris, for professional reasons and the other, with his wife and children in Ireland, for the rest of the time.
A sociological study would in all likelihood show that the instances where a person (or both spouses) is in that particular situation are currently on the rise.
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 (
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) (
See recital 6 of Regulation No 1347/2000 and recital 3 of Regulation No 2201/2003. The judgment of
Judgment of
Recital 4 of Regulation No 1347/2000.
For example, the Convention concerning the powers of authorities and the law applicable in respect of the protection of infants, done at The Hague on
Traditional criteria, such as nationality and domicile which were previously given precedence as an expression of the link between an individual and a legal system, are abandoned or take on secondary importance.
See, for example, Regulation (EC) No 883/2004 of the European Parliament and of the Council of
For example, the Council of Europe Convention on preventing and combating violence against women and domestic violence, done at Istanbul on
That absence is based on the intention not to influence other texts which use the same concept, according to Lagarde, P.,
To the same effect, see the Opinion of Advocate General Kokott in
That case-by-case assessment falls, as is logical, to the national courts. Because that assessment is specific,
Ibid., paragraph 40:
I do not agree with France’s assertion to the effect that the
which are selected for their appropriateness or correspondence to the context of the provision in which the criterion is used Relevant provisions are those which refer to habitual residence as a criterion for jurisdiction, in addition to Article 11 of Regulation No 2201/2003 in relation to cases of wrongful removal. See the judgment in Recital 12 of Regulation No 2201/2003; judgment of are applied (and weighed up) in the light of all the specific circumstances of the case. Inter alia, judgment in
Judgment in
The deceased’s last place of habitual residence is the general connecting factor for establishing international jurisdiction and the applicable law.
Recitals 23 and 24. See also my Opinion in
Regulation of the European Parliament and of the Council of
Recital 28 of Regulation 2015/848, and judgment of
there was a discussion on the subject, in the context of the inclusion of the (current) sixth indent of Article 3(1)(a); The equivalent in the 1998 Convention was Article 2(1)(a), sixth indent. Borrás Report, paragraph 32. Loc. ult. cit. Such a definition applies to cases relating to the civil service and social security. other proposals were rejected, Loc. ult. cit.
Points 38 and 39 of this Opinion.
Pursuant to Article 6, the rules governing jurisdiction in force under the laws of each Member State may not be used in disputes in which the respondent is habitually resident in or holds the nationality of one of the Member States (or, in the case of Ireland, has his or her
Italics added.
Judgment in
the place of habitual residence which is In the latter case, it is a requirement that one of the spouses must still reside in that State. The point in time when that fact must be verified is not specified. The fifth and sixth indents indicate the time when the application was made and it is reasonable to infer the same point in time in respect of the other rules of jurisdiction. the place of habitual residence of subject to the prior consent of the other party, if the application is a joint application; in such cases, jurisdiction may lie with the courts of the Member State where the applicant is habitually resident or with those of the Member State where the respondent is habitually resident; if it is the respondent’s place of habitual residence; if it is the place of habitual residence of the applicant, provided that it has been his or her place of habitual residence for at least a year before the application was made, or six months if the place of habitual residence is situated in the applicant’s Member State of nationality (or, in the case of the United Kingdom and Ireland, the applicant has his or her domicile there).
Borrás Report, paragraphs 27, 28 and 30. In Regulation No 1347/2000, recital 12 referred to the existence of a real link between the party concerned and the Member State exercising jurisdiction, without differentiating between proceedings relating to marriage breakdown and those relating to parental responsibility.
Judgments in
Footnote 40 of this Opinion.
Point 51 of this Opinion.
corresponds to the centre of means, in principle, that the individual concerned
The addition of those conditions is usually explained as an indication of the intention to limit the
Where there is no intention to abandon it, the previous place of residence remains the habitual residence.
Judgment in
See, to that effect, in relation to a deceased’s habitual residence, the judgment in
the place is the State of origin; it is the place where family members and friends are; the individual resides on a regular basis in that place and has a rental agreement or owns a property or has taken steps to rent or own a property; the place is the individual’s State of nationality; the individual has or is looking for stable employment in that place; the individual shares the culture of that place.
Additional examples are notifying the authorities of the new address, or, if the adult lives with children of school age, placing the children in a kindergarten or school: in that connection, see the Opinion of Advocate General Kokott in
Judgments in
Italics added.
I have taken the expression
Points 57 and 58 of this Opinion.
first, to contribute to the mobility of individuals within the Union, including where the transfer of residence from one Member State to another occurs after a marriage breakdown; secondly, to ensure legal certainty and proximity between individuals and the court with jurisdiction.
The conditions to which habitual residence is made subject as a criterion for jurisdiction mean that a number of forums are mutually exclusive while others are liable to overlap. It is not unusual for several criteria to tend in the direction of the same Member State.
According to the Commission (paragraph 14 of its written observations in lieu of a hearing), allowing a person to have two habitual residences for the purposes of Article 3 of Regulation No 2201/2003
In Council Regulation (EU) No 1259/2010 of
Article 3(c) of Council Regulation (EC) No 4/2009 of
Article 5 of Council Regulation (EU) 2016/1103 of
It is not unreasonable to assume that, if it is accepted, using this indirect route, that more than one habitual residence may be used as a ground of jurisdiction, it must also be accepted when interpreting the requirement of
Recital 9. It also seeks to
In contrast to other areas, the parallel in this area between international jurisdiction and the applicable law is not a priority concern: it is possible that it may not arise at the outset when the parties choose the law applicable pursuant to Article 5(1)(a), (b) and (c) of the regulation. It should also be recalled that the instrument, which is the result of enhanced cooperation, does not apply in every Member State.
as a basic approach, through the correspondence between a number of the grounds of jurisdiction laid down in Article 3(1) of Regulation No 2201/2003 and the connecting factors set out in Article 8 of Regulation No 1259/2010; directly, as a residual approach: in the absence of a choice of law by the parties, and where the grounds laid down in points (a), (b) and (c) of Article 8 of Regulation No 1259/2010 also fail, the law of the forum applies in accordance with Article 8(d).
by breaking the correlation between the forum and the court, if the court acts as a court for one of the places where a spouse is habitually resident but the law of another Member State has to be applied because that is where both spouses are habitually resident; That combination may arise in the proceedings if the French court declares that it has jurisdiction pursuant to the sixth indent of Article 3(1)(a) of Regulation No 2201/2003, after accepting that Mr IB is also habitually resident in Ireland. In those circumstances, in the absence of a valid choice of another law by the parties, Irish law will be applicable, as regards the substance, in accordance with Article 8(a) of Regulation No 1259/2010. by meaning that two (or more) courts having jurisdiction, on the basis of the place or places, situated in different Member States, where one spouse is habitually resident, apply the law
That judgment is referred to in their written observations by Ms FA, paragraph 71 et seq., the Portuguese Government, paragraph 36 et seq., and the Commission, paragraphs 13 and 32, and also by Mr IB in his written observations in lieu of a hearing, paragraph 31.
Judgment in
First, the status of Secondly, nationality which confers jurisdiction for the purposes of Article 3(1)(b) of Regulation No 2201/2003 must in all cases be the nationality of both spouses. Where only one spouse, and not the other, has dual nationality, the shared nationality of the spouses alone counts for the purposes of the provision: the spouse who has single nationality is placed neither at a disadvantage nor at an advantage. As applicant, a spouse with dual nationality does not have an additional forum available to him or her for that reason, but nor is there an additional forum for the purposes of filing an application against that spouse. The existence of several habitual residences is liable to work in favour of a spouse who has more than one residence, if he or she is the applicant (as a result of the fifth and sixth indents of Article 3(1)(a)), and of working against that spouse if he or she is the respondent, as a result of the third indent of Article 3(1)(a). Thirdly, the connecting factor of nationality is, as the Court observed, Judgment in Ibid., paragraph 55.
The likelihood that two situations
In line with the first, preferred by the Commission, Paragraph 33 and 34 of its written observations and proposed form of order. In line with the second, none of those centres of life in a number of different Member States would be capable of attributing jurisdiction based on habitual residence.
Using the information available to me, I believe that, in the case before the Court, Mr IB could lodge his application in Ireland as the last place of habitual residence of the spouses where one of them still resides, and as the place where the respondent is habitually resident.
Contrary to what Ireland suggests (paragraph 10 of its written observations in lieu of a hearing), not all the Member States lay down residual rules of jurisdiction. It is also possible that, even if they do, those rules cannot be relied on in a particular case as a result of the restriction in Article 6 of Regulation No 2201/2003.
Article 3(1)(a) of Council Regulation (EC) No 2201/2003 of
Where a spouse divides his time between two or more Member States, such that it is absolutely impossible to identify one of these as the Member State where he is habitually resident for the purposes of Article 3(1)(a) of Regulation No 2201/2003, international jurisdiction must be determined in line with other rules laid down in that regulation and, where necessary, with the residual rules in force in the Member States.
In that same situation, it would be possible, on an exceptional basis, to allocate jurisdiction to the courts of Member States where a spouse is not habitually resident if, under Regulation No 2201/2003 and the residual rules of jurisdiction, no Member State has international jurisdiction.