Court of Justice of the European Communities (including Court of First Instance Decisions)

Provisional text

OPINION OF ADVOCATE GENERAL

SZPUNAR

delivered on 24 February 2022 (1)

Case C‑501/20

M P A

v

LC D N M T

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

(Reference for a preliminary ruling – Judicial cooperation in civil matters – Jurisdiction, recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility – Regulation (EC) No 2201/2003 – Articles 3, 7, 8 and 14 – Concept of ‘habitual residence’ – Jurisdiction, recognition and 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 of the European Union – Determination of jurisdiction – Forum necessitatis – Article 47 of the Charter of Fundamental Rights of the European Union)

I.      Introduction

1.        ‘The principle of proximity … is nearest to life and is a title of nobility. It carries with it a lesson in modesty by teaching us that no political will, no judge, however pure his or her intention, can claim jurisdiction, in the long term, to rule according to his or her laws on life relationships that are outside his or her discretion.’ (2) Although written in 1986, the words of Paul Lagarde have not lost any of their relevance. The principle of proximity is now at the heart of EU regulations on matrimonial matters and matters relating to maintenance obligations.

2.        Generally speaking, the situation of a citizen of a Member State posted to another Member State or to a third State for work reasons is now a common situation. That situation becomes more complicated if the citizen decides to separate or divorce, and even more so when the court of the Member State seised must determine its international jurisdiction with regard not only to the dissolution of the union and the parental responsibility of minor children, but also the children’s maintenance allowance and the right to stay in the family home in the third State. That is the situation in the present case.

3.        By its questions referred for a preliminary ruling, the Audiencia Provincial de Barcelona (Provincial Court, Barcelona, Spain) is asking the Court about the interpretation of Articles 3, 7, 8 and 14 of Regulation (EC) No 2201/2003, (3) Articles 3 and 7 of Regulation (EC) No 4/2009 (4) and Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

4.        Those questions will lead the Court to consider, first of all, the interpretation of Articles 3 and 8 of Regulation No 2201/2003 and Article 3 of Regulation No 4/2009 and, therefore, the concept of ‘habitual residence’, in particular where the spouses are members of the contract staff of the European Union performing their duties in a third State in which they allegedly enjoy diplomatic status. Next, the Court will have to determine residual jurisdiction in matters relating to divorce and parental responsibility where the defendant is a national of a Member State and, therefore, will have the possibility of examining the relationship between Articles 6, 7 and 14 of Regulation No 2201/2003. Lastly, the Court will have to determine the scope of the forum necessitatis, as referred to in Article 7 of Regulation No 4/2009, for the purposes of determining child maintenance, and that of Article 47 of the Charter, in order to interpret those provisions.

II.    Legal framework

A.      International law

5.        Article 31(1) of the Vienna Convention on Diplomatic Relations, concluded in Vienna on 18 April 1961 (‘the Vienna Convention’), (5) provides:

‘1.      A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:

(a)      A real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;

(b)      An action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State;

(c)      An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.’

6.        Under Article 32(1) of the Vienna Convention:

‘The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under Article 37 may be waived by the sending State.’

B.      European Union law

1.      Regulation No 2201/2003

7.        Article 3 of Regulation No 2201/2003, entitled ‘General jurisdiction’, provides:

‘1.      In matters relating to divorce, legal separation or marriage annulment, jurisdiction shall lie with the courts of the Member State:

(a)      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;

(b)      of the nationality of both spouses or, in the case of the United Kingdom and Ireland, of the “domicile” of both spouses.

…’

8.        Under Article 6 of that regulation, which is entitled ‘Exclusive nature of jurisdiction under Articles 3, 4 and 5’:

‘A spouse 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,

may be sued in another Member State only in accordance with Articles 3, 4 and 5.’

9.        Article 7 of that regulation, entitled ‘Residual jurisdiction’, states in paragraph 1 thereof:

‘Where no court 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 State.’

10.      Article 8 of that regulation, which is entitled ‘General jurisdiction’, provides, in paragraph 1 thereof:

‘The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised.’

11.      Article 14 of Regulation No 2201/2003, which is entitled ‘Residual jurisdiction’, provides:

‘Where no court of a Member State has jurisdiction pursuant to Articles 8 to 13, jurisdiction shall be determined, in each Member State, by the laws of that State.’

2.      Regulation No 4/2009

12.      Article 3 of Regulation No 4/2009, which is entitled ‘General provisions’, is worded as follows:

‘In matters relating to maintenance obligations in Member States, jurisdiction shall lie with:

(a)      the court for the place where the defendant is habitually resident, or

(b)      the court for the place where the creditor is habitually resident, or

(c)      the court which, according to its own law, has jurisdiction to entertain proceedings concerning the status of a person 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, or

(d)      the court which, according to its own law, has jurisdiction to entertain proceedings concerning parental responsibility 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.’

13.      Article 7 of that regulation, which is entitled ‘Forum necessitatis’, provides:

‘Where no court of a Member State has jurisdiction pursuant to Articles 3, 4, 5 and 6, 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.

The dispute must have a sufficient connection with the Member State of the court seised.’

C.      Spanish law

14.      Ley Orgánica 6/1985 del Poder Judicial (Organic Law 6/1985, on the judiciary), of 1 July 1985, (6) as amended by Ley Orgánica 7/2015 (Organic Law 7/2015, determining the jurisdiction of the Spanish courts), of 21 July 2015, (7) provides in Article 22c(c) and (d):

‘In principle, the Spanish courts have jurisdiction:

…

(c)      in matters relating to personal relationships and property regimes between spouses, annulment of marriage, separation and divorce and changes thereto, provided that no other foreign court has jurisdiction, when both spouses are habitually resident in Spain at the time of the application or were last habitually resident in Spain and one of them resides there, or when Spain is the habitual residence of the applicant, or, where an application is made by mutual agreement, when one of the spouses resides in Spain, or when the applicant has spent at least one year habitually resident in Spain since making the application, or when the applicant is Spanish and was habitually resident in Spain for at least six months prior to making the application, or when both spouses have Spanish nationality,

(d)      in matters concerning parentage and parent-child relationships, the protection of minors and parental responsibility, when the child or minor is habitually resident in Spain at the time of the application or the applicant is Spanish or habitually resident in Spain or, in any case, is habitually resident in Spain for at least six months before making the application.’

15.      Article 22g of the LOPJ provides:

‘1.      Spanish courts do not have jurisdiction if the grounds of jurisdiction provided for in Spanish law do not specify such jurisdiction.

…

3.      … The Spanish courts may not forgo or decline jurisdiction where the case in question has links with Spain and the courts of the various States connected with the case have declined jurisdiction. …’

16.      According to Article 40 of the Código Civil (Spanish Civil Code), the domicile of diplomats resident abroad due to their position abroad who enjoy the right of diplomatic immunity is the last one they had in Spanish territory.

III. The facts giving rise to the dispute in the main proceedings, the questions referred and the procedure before the Court

17.      M P A, a citizen of Spanish nationality, and LC D N M T, a citizen of Portuguese nationality, were married on 25 August 2010 at the Spanish Embassy in Guinea-Bissau. They have two minor children, born on 10 October 2007 and 30 July 2012 in Manresa (Barcelona, Spain). The children have dual Spanish and Portuguese nationality.

18.      The spouses lived in Guinea-Bissau from August 2010 to February 2015 and then moved to Lomé (Togo). Following their de facto separation, in July 2018, the applicant in the main proceedings and the children continued to reside in the marital home in Togo and the spouse resided in a hotel in that country.

19.      The spouses are both employed by the European Commission as contract staff of the European Union in its delegation in Togo. The referring court states that contract staff – servants of the European Union in the EU Member States – have the status of diplomatic staff of the European Union only in the country of employment.

20.      On 6 March 2019, the applicant in the main proceedings brought an application before the Juzgado de Primera Instancia de Manresa (Court of First Instance, Manresa, Spain) for divorce and sought the dissolution of the matrimonial property, the determination of the regime and procedures for exercising custody and parental responsibility over the minor children, the grant of a maintenance allowance for the children and rules for the use of the family home in Lomé. She also requested the adoption of interim measures.

21.      The defendant in the main proceedings claimed that the Juzgado de Primera Instancia de Manresa (Court of First Instance, Manresa) did not have international jurisdiction. By order of 9 September 2019, the court declared that it lacked international jurisdiction to hear the case on the ground that the parties were not habitually resident in Spain.

22.      The applicant in the main proceedings brought an appeal against that decision before the referring court. She claims that both spouses enjoy diplomatic status as accredited servants of the European Union in the country of employment and that this status extends to the minor children. She claims that, pursuant to Regulations No 2201/2003 and No 4/2009, jurisdiction to hear divorce, parental-responsibility and maintenance cases is determined by habitual residence. In accordance with Article 40 of the Spanish Civil Code, habitual residence coincides not, as her husband maintains, with her place of employment as a member of the contract staff, but with her place of residence before acquiring that status, namely Spain. She also claims that she has diplomatic immunity under Article 31 of the Vienna Convention and that her applications relating to divorce, parental responsibility and maintenance do not constitute exceptions to that article.

23.      The applicant in the main proceedings also cites the application of forum necessitatis recognised by Regulation No 4/2009 and sets out the situation of the Togolese courts. She produces for that purpose reports drawn up by the United Nations Human Rights Council. She points out that one of those reports, dated 17 August 2016, finds that there is no adequate and continuous training of judges and a persistent climate of impunity for human rights violations. Another report, dated 22 August 2016, expresses the concern of the United Nations regarding the independence of the judiciary, access to justice and impunity for human rights violations. She observes that the Committee on the Elimination of Discrimination Against Women called on Togo to guarantee the effective access of women to justice.

24.      The defendant in the main proceedings asserts that neither of the two spouses performs a diplomatic function for their respective countries but that they are employees of the European Union’s Delegation to Togo, employed as contract staff. In that regard, he asserts that the laissez-passer is not a diplomatic passport but a safe conduct pass or travel document valid only within the territory of third countries that do not belong to the European Union. In addition, he asserts that Protocol No 7 on the Privileges and Immunities of the European Union (8) is applicable, not the Vienna Convention. Protocol No 7 applies exclusively to acts performed by officials and other servants of the institutions of the European Union in respect of acts performed by them in their official capacity and precludes the application of forum necessitatis.

25.      The referring court notes that, having regard to the circumstances of the case in the main proceedings, there is no case-law relating to the concept of ‘habitual residence’ of spouses, for the purposes of determining jurisdiction in matters relating to divorce. The same is true, according to the referring court, with regard to the concept of ‘habitual residence’ of minor children where it is necessary to establish the effect that diplomatic status or a similar status held by individuals performing duties as servants or workers of the European Union and posted to third States to perform those duties may have on the determination of habitual residence. It takes the view that the origin and cause of their presence in those States is related to the performance of their duties or work for the EU.

26.      It is in those circumstances that the Audiencia Provincial de Barcelona (Provincial Court, Barcelona), by judgment of 15 September 2020, received at the Court Registry on 6 October 2020, decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1)      How is the term “habitual residence” in Article 3 of Regulation No 2201/2003 and Article 3 of Regulation No 4/2009 to be interpreted in the case of the nationals of a Member State who are staying in a non-Member State by reason of the duties conferred on them as members of the contract staff of the European Union and who, in the non-Member State, are recognised as members of the diplomatic staff of the European Union, when their stay in that State is linked to the performance of their duties for the European Union?

(2)      If, for the purposes of Article 3 of Regulation No 2201/2003 and Article 3 of Regulation No 4/2009, the determination of the habitual residence of the spouses depended on their status as EU contract staff in a non-Member State, how would this affect the determination of the habitual residence of the minor children in accordance with Article 8 of Regulation No 2201/2003?

(3)      In the event that the children are not regarded as habitually resident in the non-Member State, can the connecting factor of the mother’s nationality, her residence in Spain prior to the marriage, the Spanish nationality of the minor children and their birth in Spain be taken into account for the purposes of determining habitual residence in accordance with Article 8 of Regulation No 2201/2003?

(4)      If it is established that the parents and children are not habitually resident in a Member State, given that, under Regulation No 2201/2003 there is no other Member State with jurisdiction to decide on the applications, does the fact that the defendant is a national of a Member State preclude the application of the residual clause contained in Articles 7 and 14 of Regulation No 2201/2003?

(5)      If it is established that the parents and children are not habitually resident in a Member State for the purpose of determining child maintenance, how is the forum necessitatis in Article 7 of Regulation No 4/2009 to be interpreted and, in particular, what are the requirements for considering that proceedings cannot reasonably be brought or enforced or prove impossible in a non-Member State with which the dispute is closely connected (in this case, Togo)? Must the party have initiated or attempted to initiate proceedings in that State with a negative result and does the nationality of one of the parties to the dispute constitute a sufficient connection with the Member State [of the court seised]?

(6)      In a case like this, where the spouses have strong links with Member States (nationality, former residence), is it contrary to Article 47 of the [Charter] if no Member State is considered to have jurisdiction under the provisions of the Regulations?’

27.      The referring court requested that the present case be dealt with under the urgent preliminary-ruling procedure provided for in Article 107 of the Rules of Procedure of the Court.

28.      On 19 October 2020, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, the Fourth Chamber of the Court decided that it was unnecessary to grant that request.

29.      Written observations were submitted by the Spanish and Czech Governments, the Council of the European Union and the Commission. The parties to the main proceedings and the aforementioned parties participated at the hearing on 16 September 2021.

IV.    Analysis

A.      The first question

30.      By its first question, the referring court asks, in essence, how is the concept of ‘habitual residence’, used in Article 3 of Regulation No 2201/2003 and Article 3 of Regulation No 4/2009, to be interpreted where the spouses are members of the contract staff of the European Union performing their duties in a third State in which they allegedly enjoy diplomatic status.

31.      The referring court states that, in its view, Article 40 of the Spanish Civil Code, on which the applicant in the main proceedings bases the jurisdiction of the Spanish courts, is not applicable in the dispute in the main proceedings given that the – national – concept of ‘domicile’ set out therein establishes a legal fiction under Spanish law limited to individuals performing diplomatic tasks. The referring court also states that in assessing the habitual residence of the spouses, it is necessary to determine the duration, regularity and stability of the spouses’ stay in Togo. For that reason, it asks whether their status as servants of the European Union is a decisive factor in determining whether they are habitually resident in Togo, within the meaning of Article 3 of Regulation No 2201/2003 and Article 3 of Regulation No 4/2009.

32.      To answer the first question, I will first address the concept of ‘habitual residence’, within the meaning of Article 3 of Regulation No 2201/2003 and Article 3 of Regulation No 4/2009, before examining, second, the scope of the spouses’ status as diplomatic staff of the European Union in the State where they are habitually resident for the purposes of determining its meaning and scope.

1.      The concept of ‘habitual residence’

(a)    The concept of ‘habitual residence’ within the meaning of Article 3 of Regulation No 2201/2003

33.      It is apparent from recital 1 of Regulation No 2201/2003 that it contributes to creating an area of freedom, security and justice, in which the free movement of persons is ensured. Accordingly, with the objective of ensuring legal certainty, Chapters II and III of the regulation lay down rules on jurisdiction and on recognition and enforcement of judgments concerning the dissolution of matrimonial ties. (9)

34.      Article 3 of Regulation No 2201/2003, which is included in Chapter II thereof, constitutes the backbone of rules on international jurisdiction provided for by that regulation in matters relating to divorce, legal separation or marriage annulment. According to the Court, Article 3(1)(a) and (b) of that regulation provides for a number of grounds of jurisdiction, ‘without establishing any hierarchy’. (10) The concept of ‘habitual residence’ appears in the first six grounds of competence provided for in Article 3(1)(a) (11) of Regulation No 2201/2003. (12) A seventh ground of competence – ‘the nationality of both spouses or, in the case of the United Kingdom and Ireland, of the “domicile” of both spouses’ – is set out in Article 3(1)(b) of Regulation No 2201/2003. The concept of ‘habitual residence’ therefore constitutes the cornerstone of rules on international jurisdiction in matrimonial matters. That concept also appears in Articles 6 and 7, (13) and Article 8 of that regulation, which are also relevant to the present case. (14)

35.      I note, however, that whilst the concept of ‘habitual residence’ is crucial for the competent courts to rule on an application for divorce and on issues relating to parental responsibility for the children, (15) it is not defined in Article 2 of Regulation No 2201/2003. (16) Therefore, since the EU legislature has made no reference to the law of the Member States for the purposes of determining the meaning and scope of the concept of ‘habitual residence’, within the meaning of Article 3(1)(a) of that regulation, it should be considered to be an autonomous and uniform concept of EU law. That approach is supported by the Court’s case-law relating to that regulation on the interpretation of the concept of the ‘habitual residence’ of a child, within the meaning of Article 8 of that regulation (17) and, more recently, of the ‘habitual residence’ of a spouse, for the purposes of Article 3(1)(a) of that regulation. (18)

36.      As regards the interpretation of that autonomous concept within the context of the present case, it is necessary, given that Regulation No 2201/2003 does not provide any definition of that concept, to take into account the provisions referring to that concept and the objectives of that regulation. (19) Nevertheless, I will first mention elements of the analysis of the wording of Article 3(1)(a) of that regulation by referring to the relevant case-law of the Court.

(1)    The literal, historical, contextual and purposive readings of Article 3(1)(a) of Regulation No 2201/2003

37.      In the first place, I note that, in the judgment in IB, the Court held, with regard to the determination of the habitual residence of the spouses, that several provisions of Regulation No 2201/2003, and in particular Article 3(1)(a), refer to ‘habitual residence’ in the singular, not the plural. Regulation No 2201/2003 ‘refers to the courts of the Member State of “habitual residence” of one or both of the spouses or of the child, as appropriate, systematically using the singular, and it is not envisaged that the same person may, at the same time, have several habitual residences or be habitually resident in several places’. (20)

38.      It follows, in principle, that it cannot be accepted that the habitual residence of the spouses can simultaneously be located in two Member States or, as in the present case, in a Member State and in a third State. That interpretative element, to which I will return later in my analysis, (21) is, in my view, an important starting point for determining the habitual residence of spouses in a case such as that in the main proceedings.

39.      In the second place, I recall that the Court has already held, in interpreting provisions of Regulation No 2201/2003 relating to parental responsibility, in particular Article 8 thereof, (22) that, on the one hand, the use of the adjective ‘habitual’ indicates that the residence must have a certain permanence or regularity and that, on the other, the transfer of a person’s habitual residence to a Member State [or third State] reflects the intention of the person concerned to establish there the permanent or habitual centre of his or her interests, with the intention that it should be of a lasting character. (23) More specifically, the Court considers that it is necessary to locate, in order to determine a child’s place of habitual residence, the place where the parents are permanently present and are integrated into a social and family environment. In that regard, the intention of the parents to settle with the child in that place, where that intention is manifested by tangible steps, may also be taken into account. (24)

40.      In the third place, those considerations are supported by the Borrás Report, (25) and by the objective of Article 3(1)(a) of Regulation No 2201/2003. (26) The rules on jurisdiction laid down in that article ensure a balance between the free movement of persons within the European Union and legal certainty. (27)

41.      Accordingly, in order for residence in a specific place to be considered as ‘habitual’, it must have an objective element (‘permanence’ or ‘regularity’) and a subjective element (‘intention’). Given the fundamentally factual nature of the assessment carried out by the referring court, that court must take account of all the circumstances specific to the present case. (28) In its case-law, the Court has established a series of criteria for determining the habitual residence of the individual concerned. In the comments which follow, I shall refer only to those that I consider to be relevant to the present case.

(2)    The objective and subjective elements

(i)    Permanence or regularity

42.      With regard to the objective element, I observe that, in terms of the key circumstances for establishing the habitual residence of a spouse or spouses, the environment of the individual concerned is particularly important. (29) The environment of an adult is composed of a wide range of activities and diverse interests, concerning, inter alia, professional, sociocultural and financial matters in addition to private and family matters and, according to the Court, it cannot be required that those interests be focused on the territory of a single Member State. (30) Although the system for sharing jurisdiction established by Regulation No 2201/2003 concerning the dissolution of matrimonial ties is not intended to preclude several courts having jurisdiction, I take the view, however, that, in the judgment in IB, (31) the Court recently held that ‘to accept that a spouse may be habitually resident in several Member States at the same time would be liable to undermine legal certainty, by making it more difficult to determine in advance which courts have jurisdiction to rule on the dissolution of matrimonial ties and by making it more difficult for the court seised to determine whether it has jurisdiction’. The Court, following Advocate General Campos Sánchez-Bordona, stated that ‘there would then be a risk that international jurisdiction would ultimately be determined, not by the criterion of “habitual residence”, for the purposes of Article 3(1)(a) of Regulation No 2201/2003, but by a criterion based on the mere “de facto” residence of one or other of the spouses, which would infringe that regulation’. (32)

43.      It follows, in my opinion, that, while it cannot be ruled out that a spouse may have several ‘de facto’ residences at the same time, he or she may have, at a given time, only one habitual residence for the purposes of that provision. (33)

44.      Furthermore, I recall that, according to the Court, the place of habitual residence of an individual is the place which is the centre of that individual’s life. (34) Accordingly, circumstances relating to the employment, such as the duration of the posting or the possibility of extending it, may be taken into account, and in particular the fact that the individual is employed in a specific place under an employment contract of indefinite duration. By contrast, the stays which the individual has spent in the territory of the Member State of origin in the context of leave periods or holidays cannot be regarded as a key circumstance. (35)

45.      In the present case, it is apparent from the order for reference that the spouses and their children have been established in Togo since February 2015 and, therefore, that their residence in that country is of a certain duration and has a certain degree of continuity and permanence. Their permanent physical presence in Togo – outside leave periods or holidays – is a fact established by the referring court. It should be pointed out that it is apparent from the order for reference that, following their separation, neither of the two spouses moved to their Member State of origin.

46.      In that regard, it is true that the spouses’ residence in Togo is directly related to the performance of their duties as contract staff of the European Union and that it may vary on account of those duties and the needs of the Commission. Nevertheless, it is apparent from the Commission’s written observations that, according to the information it received from the European External Action Service, the parties in the main proceedings have employment contracts of indefinite duration and are not subject to rotation at headquarters in Brussels. (36)

47.      Accordingly, the fact, pointed out by the applicant in the main proceedings when presenting her oral arguments, that she resides in Spain during leave periods or holidays and returned to Spain to give birth to her two children, does not demonstrate that the spouses – or at least the applicant in the main proceedings – habitually reside in that Member State on a stable, continuous and permanent basis.

(ii) Intention

48.      With regard to the subjective element, as stated by the Commission in its written observations, it is not clear from the order for reference that the spouses demonstrated their intention to establish the permanent or habitual centre of their interests in Spain. With the exception of the nationality of the applicant in the main proceedings and her former habitual residence in Spain, (37) that order does not contain any evidence on the basis of which to conclude that there is, in the dispute in the main proceedings, another possible connecting factor which makes it possible to consider that the place of habitual residence of the spouses – or at least one of the spouses – is in that Member State.

49.      That being so, in a situation such as that at issue in the main proceedings, it could be asked which element takes precedence where there is a conflict between the objective element (physical presence, permanent centre of interests in a specific place) and the subjective element (intention to return to the Member State of origin).

50.      In that regard, in reply to a question asked by the Court at the hearing, the Commission explained, with regard to posts in EU delegations, such as the EU Delegation to Togo, that physical presence is required and that those posts are deliberately requested by individuals who so wish. (38) In addition, the Commission noted that, in the present case, the intention of the spouses to move to Spain, at the end of their posting to Togo, was hypothetical and cannot be taken into account for the purposes of determining their place of habitual residence.

51.      I share that view. In certain exceptional cases, it could be considered, through tangible evidence or external signs, (39) that the intention of both or one of the spouses to settle in another Member State or re-settle in the Member State of origin, thereby acquiring a new ‘habitual residence’ and abandoning the previous one, can be supplemented or replaced by the duration, regularity or permanence of a physical presence, which normally denote ‘habitual residence’. (40) However, the mere intention to return to the Member State of origin after completing a stay of employment in another Member State or in a third State does not in any way call into question the current place of habitual residence of the individual concerned. In any event, in a situation such as that at issue in the main proceedings, there is no conflict between the objective and subjective elements.

52.      Consequently, in the light of all of those elements, it should be considered, on the one hand, that the residence of the spouses in the territory of Togo is, in principle, continuous and stable (41) and, on the other, that their interests concerning professional, private and family matters are focused on that State. Although I am inclined to consider that those elements suggest a priori that the habitual residence is not in Spain and that the centre of the spouses’ life is in Togo, it is however for the referring court to verify whether all the factual circumstances specific to the present case actually make it possible to consider that the spouses do not have their place of habitual residence in Spain. (42)

(b)    The concept of ‘habitual residence’ within the meaning of Article 3 of Regulation No 4/2009

53.      In the context of disputes relating to maintenance obligations, international jurisdiction is determined by the rules on jurisdiction set out in Regulation No 4/2009. (43) In that regard, it should be borne in mind that Regulation No 4/2009 establishes a complete system of rules on international jurisdiction within the framework of which the EU legislature provided, in Article 3 of that regulation, a series of alternative criteria according, in particular, to procedural reasons of proximity. (44) Accordingly, that article provides for the jurisdiction of (point (a)) the court(s) for the place where the defendant (be it the creditor or the debtor) is habitually resident, or (point (b)) the court for the place where the creditor is habitually resident.

54.      In that context, the question arises as to whether the same definition should be given to that concept of ‘habitual residence’ in Regulation No 2201/2003 and in Regulation No 4/2009.

55.      It is clear, in my opinion, that the answer is in the affirmative.

56.      With a view to a consistent and uniform application of EU law, it is necessary to adopt a definition and interpretation of the concept of ‘habitual residence’ guided by the same principles in the context of those two regulations. (45) However, that definition can be qualified for the purposes of determining the place of habitual residence in specific cases. I point out that, in so far as the concept of ‘habitual residence’ and its interpretation in the context of Regulation No 4/2009 are, as in the context of Regulation No 2201/2003, autonomous, the meaning and scope of that concept must be determined in the light of the context of the provisions and the objective of that regulation, in particular that of recital 15. In accordance with recital 15, the grounds of jurisdiction specific to disputes relating to maintenance obligations were determined with a view to satisfying two objectives: to preserve the interests of creditors (46) and to promote the proper administration of justice. (47)

57.      I therefore take the view that the concept of ‘habitual residence’ defined in Regulation No 2201/2003 in the context of Regulation No 4/2009 is relevant, having regard also to the close links that exist between those two regulations. Whilst taking into account the specific features, objective and context of Regulation No 4/2009, it seems to me that the evidence or factors – both objective (the stability, regularity of the residence and the integration of the individual into the social and family environment) and subjective (the intention of the individual to establish habitual residence in a specific place) – which make it possible to determine, in the light of the circumstances of the case, the place of habitual residence within the meaning of Regulation No 2201/2003 (48) must also guide the referring court in determining the place of habitual residence of the debtor, creditor, or applicant for maintenance in the context of Regulation No 4/2009. (49) In reality, it is the same habitual residence.

58.      That interpretation is supported by the Explanatory Report on the Hague Convention, prepared by Andrea Bonomi, (50) which states, in point 37, that the reason for the connection to the law of the State of the habitual residence ‘is that it allows a determination of the existence and amount of the maintenance obligation with regard to the legal and factual conditions of the social environment in the country where the creditor lives and engages in most of his or her activities’. In that regard, that report also states, in point 42, that ‘the criterion selected is that of habitual residence, which implies a measure of stability. Mere residence of a temporary nature is not sufficient to determine the law applicable to the maintenance obligation’.

59.      In view of my analysis of the concept of ‘habitual residence’, from which it is apparent that the place of habitual residence of the spouses does not appear to be in a Member State, it is still necessary to examine whether the status of diplomatic staff of the European Union that the spouses enjoy in Togo is likely to have an effect on the spouses’ place of habitual residence in a case such as that at issue in the main proceedings.

2.      The scope of the status of diplomatic staff of the European Union in the State of the habitual residence of the spouses for the purposes of applying Article 3 of Regulation No 2201/2003

60.      The Spanish Government submits that the court with jurisdiction to rule on an application for divorce, in accordance with Regulation No 2201/2003, is the court of the State of the spouses’ habitual residence. However, on the basis of recital 14 of that regulation, it considers that, if that jurisdiction cannot be exercised by reason of the existence of the status of diplomatic staff enjoyed by the spouses as contract staff of the European Union, that jurisdiction should be determined in accordance with the national law of the Member State in which the individuals concerned do not enjoy that status, pursuant to the law of the forum, namely Article 40 of the Spanish Civil Code. The Spanish Government states that, under Article 31(1) of the Vienna Convention, applicable in Togo, diplomatic agents enjoy immunity from the civil jurisdiction of the receiving State. Consequently, the recognition of such diplomatic status precludes the application of the criterion of the habitual residence of the spouses for the purposes of determining international jurisdiction in matters relating to divorce.

61.      The Czech Government merely asserts that an individual assigned as a member of the diplomatic staff to a third State retains his or her habitual residence in the Member State in which he or she resided before that assignment.

62.      By contrast, the Commission considers that the fact that the spouses enjoy the status of EU workers and are, for that reason, seconded to a third State should be of no particular importance in the context of the assessment of their habitual residence. According to the Commission, and contrary to the position adopted by the Spanish Government, recital 14 of Regulation No 2201/2003 is not relevant to the dispute in the main proceedings. In so far as the spouses do not enjoy diplomatic immunity in any Member State, their diplomatic status is not a relevant factor in determining whether, as EU workers, their place of habitual residence is in the receiving State.

63.      In the first place, I note that it is not apparent from the interpretation of Article 3(1)(a) of Regulation No 2201/2003 or from that of Article 3 of Regulation No 4/2009 that the professional status as contract staff of the European Union enjoyed by the spouses may be relevant for the purposes of determining their place of habitual residence.

64.      In the second place, I observe that recital 14 of Regulation No 2201/2003 states that ‘this Regulation should have effect without prejudice to the application of public international law concerning diplomatic immunities. Where jurisdiction under this Regulation cannot be exercised by reason of the existence of diplomatic immunity in accordance with international law, jurisdiction should be exercised in accordance with national law in a Member State in which the person concerned does not enjoy such immunity’.

65.      I must point out that that recital confirms that, under international law, the courts of a Member State cannot exercise their jurisdiction if the individual concerned enjoys diplomatic status in that Member State. However, even if the individual concerned enjoys diplomatic immunity, the question still arises as to the extent to which the existence of that diplomatic immunity precludes the jurisdiction of the Togolese courts. Nevertheless, that is not the issue in the present case.

66.      That being said, I share the view of the Commission that that recital is not relevant to the dispute in the main proceedings. The referring court states that contract staff have the status of diplomatic staff of the European Union in their country of employment. (51) However, they have the status of servants of the European Union in EU Member States. The spouses do not therefore enjoy diplomatic immunity, within the meaning of Article 31 of the Vienna Convention, in any Member State. Furthermore, the Commission stated, in reply to a question asked by the Court at the hearing, that the diplomatic immunity enjoyed by the spouses in Togo is intended to protect officials or staff of the delegation in the course of the performance of their duties.

3.      Intermediate conclusion

67.      Taking into account all the above considerations, I take the view that the spouses’ status as contract staff of the European Union in a third State is not a decisive factor in determining the place of habitual residence, (52) whether in the meaning of Article 3 of Regulation No 2201/2003 or Article 3 of Regulation No 4/2009.

B.      The second question

68.      In view of my proposed answer to the first question, it is not necessary to examine the second question. Therefore, I will merely observe that it is clear that the spouses’ status as contract staff of the European Union in a third State has no effect, moreover, on the determination of the place of habitual residence of the minor children, within the meaning of Article 8 of Regulation No 2201/2003.

C.      The third question

69.      By its third question, the referring court asks, in essence, whether it is possible, for the purposes of determining the children’s place of habitual residence, within the meaning of Article 8 of Regulation No 2201/2003, only to take into consideration criteria such as the mother’s nationality, the fact that she resided in a Member State before her marriage, the nationality of the minor children and their birth in that Member State.

70.      In the first place, I recall that, with regard to the place of habitual residence of children in disputes relating to parental responsibility, Article 8 of Regulation No 2201/2003 does not make any express reference to the law of the Member States for the purposes of determining the meaning and scope of the concept of ‘habitual residence’ and therefore ‘that determination must be made in the light of the context of the provisions and the objective [of the] Regulation, in particular that which is apparent from [recital 12], according to which the grounds of jurisdiction which it establishes are shaped in the light of the best interests of the child, in particular on the criterion of proximity’. (53)

71.      In the second place, according to the Court, the child’s place of habitual residence must be established on the basis of all the circumstances specific to each individual case. (54) In that regard, the Court set out a series of factors enabling the national court to make that determination.

72.      First of all, the Court considers, on the one hand, that the determination of a child’s habitual residence in a given Member State requires at least that the child has been physically present in that Member State (55) and, on the other, that 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. (56)

73.      Next, it states that the child’s place of habitual residence, within the meaning of Regulation No 2201/2003, is the ‘place which, in practice, is the centre of that child’s life’ at the time the application concerning parental responsibility over the child was submitted, with it being for the court seised to the determine where that centre was located. (57) Within that framework, factors such as the duration, regularity, conditions and reasons for the child’s stay in the territory of the Member State in question (or, like in the present case, a third State), (58) the place and conditions of the child’s attendance at school, and the family and social relationships of the child in that Member State (or in that third State) may be taken into account. (59)

74.      Lastly, as I pointed out in point 39 of this Opinion, the Court considers that it is necessary to locate, in order to determine a child’s place of habitual residence, the place where the parents are permanently present and are integrated into a social and family environment. In that regard, the intention of the parents to settle with the child in that place, where that intention is manifested by tangible steps, may also be taken into account. (60)

75.      In the present case, it is apparent from the order for reference that the children were born in 2007 and 2012 in Spain and that they hold Spanish and Portuguese nationality. Furthermore, the parents resided in Guinea-Bissau from August 2010 to February 2015 and then moved to Togo where they still reside. As I have already pointed out, the referring court clearly states that, following the parents’ de facto separation, the children did not move. In those circumstances, the ‘centre of life’ of those minor children does not, therefore, appear to be located in Spain.

76.      The referring court cannot only consider criteria such as the Spanish nationality of the mother and the two minor children, or the fact that they were born in Spain or spend their holidays in that Member State, for the purposes of considering that the place of the children’s habitual residence is in that Member State. (61)

77.      It must therefore be considered that the children’s place of habitual residence, within the meaning of Article 8(1) of Regulation No 2201/2003, is not in Spain, which it is for the referring court to assess taking into account all the factual circumstances specific to the present case.

78.      In the light of the foregoing considerations, I propose that the answer to the third question is that it is not possible, for the purposes of determining the children’s place of habitual residence, within the meaning of Article 8 of Regulation No 2201/2003, only to take into consideration criteria such as the mother’s nationality, the fact that she resided in a Member State before her marriage, the nationality of the minor children and their birth in that Member State.

D.      The fourth question

79.      By its fourth question, the referring court asks the Court, in essence, whether the fact that the defendant in the main proceedings is a national of a Member State precludes the application of the residual clause contained in Articles 7 and 14 of Regulation No 2201/2003. Those doubts arise from the fact that, according to the referring court, in accordance with some legal writings, Article 6 of that regulation may preclude the application of Articles 7 and 14 thereof and, consequently, national laws on determining jurisdiction in matters relating to divorce and parental responsibility.

80.      By contrast, the Spanish Government maintains in its written observations that the fact that the children’s father is a national of a Member State does not preclude the application of Articles 7 and 14 of Regulation No 2201/2003.

1.      Residual jurisdiction in matters of divorce: the relationship between Articles 6 and 7 of Regulation No 2201/2003, a double hierarchised solution

81.      Article 7(1) of Regulation No 2201/2003 provides that ‘where no court 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 State’. Whilst that provision, taken alone, seems to allow spouses who have their habitual residence outside of the EU and who have different nationalities to have a subsidiary place of jurisdiction pursuant to national rules on jurisdiction, (62) the scope of that jurisdiction is, however, limited by Article 6 of that regulation. It is apparent from a combined reading of Articles 6 and 7 of that regulation that it allows the application of national rules on jurisdiction only under certain conditions aimed at protecting the defendant. (63)

82.      First of all, in accordance with Article 6 of Regulation No 2201/2003, a spouse who is habitually resident in the territory of a Member State or 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, may be sued in another Member State only in accordance with Articles 3, 4 and 5 of that regulation. (64)

83.      Next, with regard in particular to Article 6(b) of Regulation No 2201/2003, it is apparent from a textual reading of that provision that the choice made by the EU legislature to use the words ‘another Member State’ implies that it is a different Member State to that of which the spouse is a national. I therefore take the view that a restrictive interpretation of Article 6 of that regulation, according to which, in the event that they are nationals of a Member State but the place of their habitual residence is not in a Member State, there is no forum available to the spouses under Regulation No 2201/2003, must be dismissed.

84.      Not only is such an interpretation against all logic, but it is also contrary to the clear wording of Article 7(1) of Regulation No 2201/2003, the application of which depends on whether a court of a Member State has jurisdiction under Articles 3 to 5 of that regulation. (65) What would be, in such a case, the ratio legis of a provision that made no forum available in at least one of the Member States, in so far as it has an exclusionary effect?

85.      Furthermore, such an interpretation is contrary to the objective of Regulation No 2201/2003. In that regard, I point out that recital 1 of that regulation refers to the creation of an area of freedom, security and justice, ‘in which the free movement of persons is ensured’. So far as concerns that objective, the Court has already held that that regulation aims to lay down uniform conflict-of-law rules for divorce in order to ensure a free movement of persons which is as wide as possible. (66) I recall, lastly, that that regulation has also set the objective of promoting the mutual recognition of judicial decisions. (67)

86.      The non-restrictive interpretation that I advocate is also supported by the Court’s case-law. The Court has already held in its judgment in Sundelind Lopez, (68)that a respondent having his or her habitual residence in a Member State or being a national of a Member State can, in view of the exclusive nature of the jurisdiction set out in Articles 3 to 5 of Regulation No 2201/2003, be sued in the courts of another Member State only pursuant to those provisions, and consequently not pursuant to the rules of jurisdiction laid down by national law. (69)

87.      Lastly, according to legal writings, Article 6 of Regulation No 2201/2003 implies that, where a person is a national of a Member State but his or her place of habitual residence is not in a Member State, he or she may be sued in a Member State other than that of which he or she is a national only if the other Member State declares that it has jurisdiction under Article 3 of that regulation. (70) Some authors consider that Articles 6 and 7 of that regulation establish in matters of divorce a hierarchy of rules on jurisdiction thus creating, in essence, a double solution. On the one hand, if one of the grounds of jurisdiction laid down in Regulation No 2201/2003 confers jurisdiction on the courts of a Member State, the provision of that regulation relating to that criterion is thus applicable to the exclusion of any national rule, regardless of other connecting factors. On the other, national rules are applicable in the absence of jurisdiction by virtue of that regulation, even if they are not effective against nationals of Member States or persons domiciled on the territory of Member States. (71)

88.      In the present case, the spouses do not have common nationality of a Member State and their place of habitual residence appears to be in a third State. In any event, it is apparent from the order of reference that the place of habitual residence of the applicant in the main proceedings is not Portugal and she is not a Portuguese national. Furthermore, as I have already explained in point 52 of this Opinion, everything seems to indicate that the place of habitual residence is not in Spain. Therefore, the applicant in the main proceedings cannot, by invoking the residual clause contained in Article 7(1) of Regulation No 2201/2003, initiate divorce proceedings in Spain against her spouse who has Portuguese nationality, in so far as Article 6 of that regulation precludes him from being sued before the referring court in accordance with the rules on residual jurisdiction under Spanish law.

89.      It would, however, be possible for the applicant in the main proceedings, as the Commission suggests, to bring divorce proceedings in Portugal.

90.      In that case, one might wander what the situation of a spouse might be if the rules on jurisdiction under the national law of the Member State of which he or she is a national do not provide for residual jurisdiction in the light of Regulation No 2201/2003. In such a case, no court of a Member State would have jurisdiction under that regulation. I will revisit that question in the context of my examination of the sixth question. (72)

91.      For all those reasons, I propose that the answer to the fourth question is that, with regard to the application for divorce, if the court seised cannot establish its jurisdiction on the basis of Articles 3 to 5 of Regulation No 2201/2003, which it is for the referring court to assess, Article 6 of that regulation then precludes the application of the residual clause contained in Article 7(1) of that regulation and, consequently, the defendant – a national of a Member State – can be sued only before the courts of that Member State. (73)

2.      Residual jurisdiction in matters relating to parental responsibility

92.      Article 14 of Regulation No 2201/2003 provides that ‘where no court of a Member State has jurisdiction pursuant to Articles 8 to 13, jurisdiction shall be determined, in each Member State, by the laws of that State’.

93.      So far as concerns the relationship between Article 8 and Article 14 of Regulation No 2201/2003, the Court has observed that the fact that a dispute brought before a court of a Member State may not, in principle, come within the scope of Article 8(1) of Regulation No 2201/2003 does not necessarily preclude that court from having jurisdiction in that dispute on another basis. (74) According to the Court, that regulation establishes a mechanism authorising Member States to protect the interests of a child even in the case of disputes which do not come under Article 8(1) of that regulation. In that case, Article 14 of that regulation stipulates that the Member States may, on a residual basis, confer jurisdiction on their courts under their national laws. (75)

94.      In the present case, Article 14 of Regulation No 2201/2003 authorises the court seised to apply its own rules on jurisdiction, including those conferring jurisdiction on it on the ground of the child’s nationality, to establish its jurisdiction, even if the defendant is a national of another Member State, since Article 6 of that regulation applies only in matters relating to divorce, legal separation or marriage annulment. (76)

95.      In summary, it follows from the examination of Articles 6, 7 and 14 of Regulation No 2201/2003 that it is possible that international jurisdiction in matrimonial matters and the matter of parental responsibility is conferred on different courts. Admittedly, the plurality of forums, which is consistent with the principle of favor divortii on which the laws of most Member States are based, favours divorce proceedings being split up. One could then wonder if the best interests of the child are compromised by such fragmentation.

96.      I believe not. So far as concerns children, the grounds laid down in Regulation No 2201/2003 for measures concerning children are different to those relating to divorce, with the result that jurisdiction may coincide only under favourable circumstances or with the consent of the spouses. (77) Article 12(3) of that regulation thus allows spouses to avoid the splitting up of proceedings. According to that provision, the courts of a Member State also have jurisdiction in relation to parental responsibility in proceedings other than those referred to in Article 12(1) of that regulation, first, where 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 child is a national of that Member State and, second, 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. (78) That provision thus allows the spouses to accept the jurisdiction of the divorce court, provided that this choice is in the best interests of the child. (79)

97.      In the light of the foregoing, I propose that, so far as concerns parental responsibility, if the court seised does not have jurisdiction under Articles 8 to 13 of Regulation No 2201/2003, which it is for the referring court to verify, Article 14 of that regulation applies regardless of the children’s place of habitual residence and the nationality of the defendant.

E.      The fifth question

98.      By its fifth question, the referring court is asking the Court about the scope of the forum necessitatis in Article 7 of Regulation No 4/2009 for the purposes of determining the children’s maintenance allowance. More specifically, the referring court asks what criteria make it possible to determine that proceedings cannot reasonably be brought or conducted or would be impossible in a third State with which the dispute is closely connected. In such cases, the referring court also asks whether it is necessary to demonstrate that it is impossible to conduct the proceedings in that third State and whether the nationality of one of the parties is sufficient to consider that there is a close link with a Member State.

99.      In order to answer that question, it is necessary to examine the scope of the forum necessitatis in Article 7 of Regulation No 4/2009.

1.      The scope of the forum necessitatis in Article 7 of Regulation No 4/2009

100. The first paragraph of Article 7 of Regulation No 4/2009, provides, on the one hand, that where no court of a Member State has jurisdiction pursuant to Articles 3, 4, 5 and 6 of that 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 and, on the other, that the dispute must have a sufficient connection with the Member State of the court seised.

101. Accordingly, for the application of forum necessitatis in matters relating to maintenance obligations, no court must have jurisdiction in another Member State. In other words, given its residual nature, (80) that forum applies only in cases of negative conflict of jurisdiction within the European Union.

(a)    Lack of jurisdiction in a Member State under Articles 3 to 6 of Regulation No 4/2009

102. In order to determine whether Article 7 of Regulation No 4/2009 is applicable, the court must verify that none of the grounds of jurisdiction laid down in Articles 3 to 6 of that regulation applies to the dispute before it.

103. With regard, in the first place, to the alternative and non-hierarchised grounds of jurisdiction laid down in Article 3 of Regulation No 4/2009, the court seised must find that neither the applicant, nor the defendant, have their place of habitual residence in a Member State. If that is the case, the court must still verify that no court of a Member State has jurisdiction under the criteria established in Article 3(c) and (d) of that regulation. Those two provisions, which govern the concentration of the proceedings, indicate that jurisdiction to rule in matters relating to maintenance obligations lies with the court which, according to its own law, has jurisdiction to entertain proceedings concerning the status of a person if the matter relating to maintenance is ancillary to those proceedings (point (c)), or the court which, according to its own law, has jurisdiction to entertain proceedings concerning parental responsibility if the matter relating to maintenance is ancillary to those proceedings (point (d)) (in that case for the benefit of the child), unless that jurisdiction is based solely on the nationality of one of the parties.

104. In that regard, I point out that the Court, in its judgment in A, (81) interpreted Article 3(c) and (d) of Regulation No 4/2009, in particular, by clarifying the relationship between the grounds of jurisdiction laid down therein. Noting that it is vital to take into account, in interpreting the rules on jurisdiction laid down by Article 3 of that regulation, the best interests of the child, the Court held that that provision must be interpreted as meaning that, where two courts are seised of proceedings, one involving proceedings concerning the separation or dissolution of the marital link between married parents of minor children, and the other involving proceedings relating to parental responsibility for those children, an application for maintenance in respect of those children ‘may be regarded as ancillary only to the proceedings in matters of parental responsibility’. (82)

105. The referring court notes that, if it turns out that, in the circumstances of the dispute in the main proceedings, the court seised does not have jurisdiction under Articles 8 to 13 of Regulation No 2201/2003 and that Article 14 of that regulation applies, the Spanish courts will then have jurisdiction to rule on matters relating to parental responsibility pursuant to Article 22c(d) of the LOPJ, (83) on the basis of the mother’s Spanish nationality. (84) However, I observe that, whilst the application for maintenance is linked to the proceedings relating to matters of parental responsibility, the ground of jurisdiction laid down in Article 3(d) of Regulation No 4/2009 is not applicable where the court has jurisdiction, according to its own law, based on the nationality of one of the parties. (85) Consequently, in view of the clear wording of that provision, (86) it is likely, in principle, that the Spanish courts with jurisdiction in matters relating to parental responsibility pursuant to the exercise of residual jurisdiction under Article 14 of that regulation, do not, however, have jurisdiction to rule on the children’s maintenance allowance.

106. So far as concerns, in the second place, Articles 4 to 6 of Regulation No 4/2009, the court must also verify that no court of a Member State has jurisdiction to rule on an application for maintenance in the light of subsidiary grounds of jurisdiction provided for in those articles. In that regard, I note that it does not appear from the order for reference that this is the case. (87) It is common ground that the parties to the main proceedings do not have the same nationality. (88)

107. It follows, in principle, from all of those circumstances that, in a case such as that in the main proceedings, no court of a Member State has jurisdiction to hear the application for maintenance. The question therefore arises as to whether, in such a case, the two conditions laid down in Article 7 of Regulation No 4/2009 are met for the application of forum necessitatis by the referring court in a case such as this one.

(b)    The impossibility or virtual impossibility of bringing or conducting proceedings in a third State with which the dispute is closely connected

108. I note at the outset that, as stated by recital 16 of Regulation No 4/2009, the application of forum necessitatis provided for in Article 7 thereof seeks to remedy situations of denial of justice where no court of a Member State would ordinarily have jurisdiction.

109. The application of forum necessitatis thus enables the courts of a Member State, on an exceptional basis, to hear the dispute if proceedings cannot reasonably be brought or conducted, or would be impossible in a third State with which the dispute is closely connected.

110. With regard, first of all, to the close connection between the dispute and the third State, I take the view that, generally speaking, it would be possible to consider there to be such a connection if the court seised found that the place of habitual residence of the parties was in the territory of a third State, such as, in the present case, Togo, and that the courts of that State declare that they have jurisdiction in accordance with their own law.

111. As for, next, the condition relating to the impossibility of bringing or conducting proceedings in a third State, to which the referring court expressly refers in its question, it should be noted that Article 7 of Regulation No 4/2009 establishes two categories of obstacles justifying the application of forum necessitatis by the referring court.

112. The first category concerns the situation in which maintenance proceedings would be impossible in a third State. (89) This category may include, in particular, situations where the court of the third State with which the dispute is closely connected declares that it lacks jurisdiction, and where the procedural requirements are unreasonable. (90)

113. The second category concerns the situation in which proceedings cannot reasonably be brought or conducted in a third State.

114. In that regard, recital 16 of Regulation No 4/2009 refers to certain situations considered to be exceptional, and which may guide the interpretation of that condition. Accordingly, the state of necessity may result from very serious situations, such as civil war, or when an applicant cannot reasonably be expected to initiate or conduct proceedings in a third State. (91) In that same vein, the court seised of the dispute may apply the forum necessitatis in certain circumstances, as stated by the Commission, when access to justice is unduly hampered, in particular when legal representation is prohibitively expensive, when the length of proceedings is excessively long, when there is serious corruption within the judicial system, or when there are failures concerning the fundamental requirements for a fair hearing (92) or systemic failures. Whether procedural or circumstantial, the existence of an impossibility must be examined by the court seised in the light of all the circumstances of the case.

115. It must be noted that, in order to reconcile the exceptional nature of the application of forum necessitatis and the broad margin of discretion available to it, the court seised must proceed with the utmost of care. The forum necessitatis may be applied only in very serious or emergency situations where there is a risk of a denial of justice. In that regard, I would point out that the expectation that the solution envisaged by the court seised is more favourable that than expected from the competent court under Regulation No 4/2009 (93) or that the idea to remedy situations of denial of justice related to a strict interpretation of the grounds of jurisdiction laid down in that regulation can in no way justify the application of forum necessitatis, (94) which is not an alternative forum but an emergency forum.

(c)    The existence of a sufficient connection with the Member State of the court seised

116. If the court seised of a dispute considers, like in the present case, that the condition relating to the impossibility or virtual impossibility of bringing or conducting proceedings in a third State with which the dispute is closely connected has been met, jurisdiction based on the forum necessitatis can, however, be exercised only if the dispute has a ‘sufficient connection’ with the Member State of that court. Recital 16 of Regulation No 4/2009 clarifies that the connection required under Article 7 of the regulation may exist if one of the parties has the nationality of a State of that court. (95)

117. In that regard, according to legal writings, the existence of such a ‘sufficient connection’ may be established only if it appears that the connections between the dispute and the Member State of the court seised are not ‘transitory or illusory’. (96) As I have already noted in my Opinion in KP, (97) I consider, in general terms, that the rules on jurisdiction in Regulation No 4/2009 are based on the assumption that there is a connection between the maintenance payments to which a particular matter relates and the State whose court has jurisdiction to resolve it. That connection must be at least close enough to allow both parties to the maintenance obligation to predict in which courts of which State the matters concerning those payments could be brought.

118. It must also be noted that the purpose of the maintenance claim is normally of a financial nature and that, from a practical point of view, the fact that the debtor has assets in the territory of the Member State of the court seised cannot be considered to be a connecting factor that can be taken into account by the court seised in its assessment of the situation, carried out on a case-by-case basis. That being said, it is however worth noting that Regulation No 4/2009 does not seek to establish universal coverage in matters relating to maintenance obligations. (98)

119. In any event, I consider that any interpretation of Article 7 of that regulation must be made in the light of Articles 24 and 47 of the Charter.

120. In that regard, I point out that, according to the Court, the implementation of Regulation No 4/2009 must occur in accordance with Article 24(2) of the Charter, according to which, in all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration. (99)

121. With regard to the interpretation of Article 7 of that regulation in the light of Article 47 of the Charter, I refer to my analysis of the sixth question referred.

2.      Application to the present case

122. So far as concerns, in the first place, the impossibility or virtual impossibility of bringing or conducting proceedings in a third State with which the dispute has a close connection, the applicant in the main proceedings invokes, relying on various reports drawn up by the United Nations Human Rights Council, in particular the lack of adequate and continuous training of judges, the need to reform and strengthen the justice sector, as well as concerns regarding the independence of the judiciary in Togo, access to justice and the existence of discriminatory practices against women. (100)

123. It is therefore necessary to examine whether circumstances, such as those relied on by the applicant in the main proceedings, may be regarded as being relevant to enable the court seised to assess whether the conditions for the application of forum necessitatis, laid down in the first paragraph of Article 7 of Regulation No 4/2009, have been met and, in particular, to establish whether proceedings cannot reasonably be brought or conducted or would be impossible in a third State with which the dispute has a close connection, namely, in the present case, Togo.

124. In that regard, I take the view that the examination of the first paragraph of Article 7 of Regulation No 4/2009, as analysed in points 100 to 118 of this Opinion, could guide the referring court.

125. In that context, I must point out that, if circumstances such as those relied on by the applicant in the main proceedings may be considered to be relevant and guide the court seised to determine whether they are capable of justifying, under the first paragraph of Article 7 of Regulation No 4/2009, the application of forum necessitatis, the assessment by that court of the conditions required under that provision, in the light of the criteria referred to in point 114 of this Opinion, must take into account not only the circumstances relied on by the applicant in the main proceedings, but also findings based on objective information and data. In particular, noting the existence of difficulties relating to effective access to courts for women and discriminatory practices against women in Togo, (101) would allow that court to consider there to be a risk of a denial of justice and, consequently, that the conditions for the application of forum necessitatis, established in Article 7 of that regulation, have been met.

126. Furthermore, I point out that the applicant in the main proceedings is not required to demonstrate that she initiated or attempted to initiate proceedings in that State with a negative result. In that regard, I share the view of the Commission in that it considers that requiring the parties to attempt to bring proceedings before the courts of the third State solely for the purposes of demonstrating the state of necessity in order to apply the forum necessitatis is contrary to the objective of Regulation No 4/2009 which aims, in essence, to protect the maintenance creditor and to promote the proper administration of justice.

127. With regard, in the second place, to the existence of a sufficient connection with the Member State of the court seised, within the meaning of the second paragraph of Article 7 of Regulation No 4/2009, it is apparent from my analysis, in points 116 to 118 of this Opinion, that the nationality of one of the parties may be sufficient to establish the existence of such a connection.

128. Consequently, in the light of all the foregoing considerations, I take the view that Article 7 of Regulation No 4/2009 must be interpreted as meaning that the state of necessity may result from exceptional, very serious or emergency situations such that proceedings cannot reasonably be brought or conducted or would be impossible in a third State with which the dispute is closely connected. Those conditions are met, in particular, when the court of the third State with which the dispute is closely connected refuses to exercise jurisdiction or there are abusive procedural requirements, when, due to civil unrest or natural disasters, it is dangerous to go to certain places and the third State’s normal activity is affected and, lastly, when access to justice is unduly hampered, in particular when legal representation is prohibitively expensive, when the length of proceedings is excessively long, when there is serious corruption within the judicial system, or when there are failures concerning the fundamental requirements for a fair hearing or systemic failures. The parties are not required, pursuant to that provision, to demonstrate, with documentary evidence, the existence of such circumstances.

F.      The sixth question

129. By its sixth question, the referring court asks whether a situation in which the spouses have close links with Member States, by reason, in particular, of their nationalities and their previous residence, and where no Member State appears to have jurisdiction under the regulations applicable, is contrary to Article 47 of the Charter.

130. The Council considers, in particular, that Regulation No 2201/2003 is not contrary to Article 47 of the Charter even if, in a situation such as that at issue in the main proceedings, pursuant the criterion of habitual residence provided for by that regulation, no court of a Member has jurisdiction to hear proceedings in matters relating to divorce and/or parental responsibility brought by spouses who are nationals and former residents of EU Member States and whose place of habitual residence is in a third State at the time when proceedings are initiated. The mere fact that the competent court is located in a third State cannot lead to the conclusion that the individuals concerned are deprived of effective judicial protection.

131. I do not agree with that approach.

132. In actual fact, I must point out that there is nothing, in my view, in that question on the basis of which to consider that it concerns the validity of Regulation No 2201/2003 and/or that of Regulation No 4/2009. In any event, it is necessary to interpret the relevant provisions of those regulations before assessing their validity in the light of Article 47 of the Charter.

133. It is clear that the provisions of Regulation No 2201/2003 and Regulation No 4/2009 relating, on the one hand, to residual jurisdiction, provided for in Articles 7 and 14 of Regulation No 2201/2003, and, on the other, to forum necessitatis, provided for in Article 7 of Regulation No 4/2009, must be interpreted by the court seised in the light of Article 47 of the Charter.

134. First, Article 51(1) of the Charter provides that the provisions of the Charter are addressed to the Member States only when they are implementing EU law. (102)

135. Second, as regards, in particular, Regulation No 2201/2003, national rules on jurisdiction are applicable only where no court of a Member State has jurisdiction under the rules on jurisdiction laid down in that regulation. National rules on jurisdiction are part of a cascade system of grounds of jurisdiction, which include rules on jurisdiction laid down by EU regulations. In those circumstances, Member States are also required to comply with Article 47 of the Charter in situations in which their courts have jurisdiction under national law to hear disputes falling within the scope of that instrument. (103)

136. In the present case, in particular with regard to residual jurisdiction and/or forum necessitatis, given the wording of Article 3(d) of Regulation No 4/2009, it is likely that the Spanish courts with jurisdiction in matters relating to parental responsibility on the basis of residual jurisdiction under Article 14 of that regulation do not have jurisdiction to rule on the children’s maintenance allowance. In those circumstances, it is also possible that, so far as concerns the maintenance claim, the court seised may, under Article 7 of Regulation No 4/2009, apply the forum necessitatis to hear such a claim, and there is therefore no doubt, not only that those articles must be interpreted in the light of Article 47 of the Charter, but also that, as I have stated, Spanish rules on jurisdiction that enable the court seised to exercise jurisdiction must be applied in accordance with that article. Consequently, national rules on jurisdiction, as is the case here with Article 22c(d) of the LOPJ, must be interpreted in the light of Article 47 of the Charter in order to avoid the risk of a denial of justice.

137. Third, the coordination of the regulations in question in matters relating to divorce, parental responsibility and maintenance is, generally speaking, provided for by certain provisions, as I have explained. That is true, in particular, of Article 3(d) of Regulation No 4/2009. Accordingly, in the event that such coordination is not possible due to particular circumstances, such as those of the dispute in the main proceedings, the court seised could have jurisdiction in matters relating to parental responsibility, but not for aspects of the case relating to minor children, and the lack of jurisdiction of the court seised could be resolved through the application of the forum of necessity ‘“by extension” of a reasonable (in principle) forum’. (104)

138. I therefore propose that the Court answer that question by finding that Articles 7 and 14 of Regulation No 2201/2003, relating to subsidiary jurisdiction in matters of divorce, legal separation or marriage annulment respectively, and Article 7 of Regulation No 4/2009, with regard to the forum necessitatis in matters relating to maintenance, must be interpreted by the court seised in the light of Article 47 of the Charter. National rules on residual jurisdiction, including those relating to the forum necessitatis, must be applied in the light of that same article.

V.      Conclusion

139. Having regard to the foregoing considerations, I propose that the Court answer the questions referred to the Court for a preliminary ruling by the Audiencia Provincial de Barcelona (Provincial Court, Barcelona, Spain) as follows:

1.      The spouses’ status as contract staff of the European Union in a third State is not a decisive factor in determining the place of habitual residence, whether in the meaning of Articles 3 and 8 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, or Article 3 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.

2.      It is not possible, for the purposes of determining the children’s place of habitual residence, within the meaning of Article 8 of Regulation No 2201/2003, only to take into consideration criteria such as the mother’s nationality, the fact that she resided in a Member State before her marriage, the nationality of the minor children and their birth in that Member State.

3.      With regard to the application for divorce, if the court seised cannot establish its jurisdiction on the basis of Articles 3 to 5 of Regulation No 2201/2003, Article 6 of that regulation then precludes the application of the residual clause contained in Article 7(1) of that regulation and, consequently, the defendant – a national of a Member State – can be sued only before the courts of that Member State.

So far as concerns parental responsibility, if the court seised does not have jurisdiction under Articles 8 to 13 of Regulation No 2201/2003, Article 14 of that regulation applies regardless of the children’s place of habitual residence and the nationality of the defendant.

4.      Article 7 of Regulation No 4/2009 must be interpreted as meaning that the state of necessity may result from exceptional, very serious or emergency situations such that proceedings cannot reasonably be brought or conducted or would be impossible in a third State with which the dispute is closely connected. Those conditions are met, in particular, when the court of the third State with which the dispute is closely connected refuses to exercise jurisdiction or there are abusive procedural requirements, when, due to civil unrest or natural disasters, it is dangerous to go to certain places and the third State’s normal activity is affected, and, lastly, when access to justice is unduly hampered, in particular when legal representation is prohibitively expensive, when the length of proceedings is excessively long, when there is serious corruption within the judicial system, or when there are failures concerning the fundamental requirements for a fair hearing or systemic failures. The parties are not required to demonstrate that they initiated or attempted to initiate proceedings in that State with a negative result.

5.      Articles 7 and 14 of Regulation No 2201/2003, relating to subsidiary jurisdiction in matters of divorce, legal separation or marriage annulment respectively, and Article 7 of Regulation No 4/2009, with regard to the forum necessitatis in matters relating to maintenance, must be interpreted by the court seised in the light of Article 47 of the Charter. National rules on residual jurisdiction, including those relating to the forum necessitatis, must be applied in the light of that same article.

1      Original language: French.

2      Lagarde, P., ‘Le principe de proximité dans le droit international privé contemporain’, Cours général de droit international privé, vol. 196, Hague Academy of International Law, 1986, pp. 21-194, in particular p. 194.

3      Council Regulation 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).

4      Council Regulation 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).

5      United Nations Treaty Series, vol. 500, p. 95.

6      BOE No 157 of 2 July 1985, p. 20632.

7      BOE No 174 of 22 July 2015, p. 61593; ‘the LOPJ’.

8      OJ 2016 C 202, p. 266.

9      Judgments of 13 October 2016, Mikołajczyk (C‑294/15, EU:C:2016:772, paragraph 33 and the case-law cited), and of 25 November 2021, IB (Habitual residence of a spouse – Divorce) (C‑289/20, EU:C:2021:955; ‘judgment in IB’; paragraph 31).

10      See, in particular, judgment of 16 July 2009, Hadadi (C‑168/08, EU:C:2009:474, paragraph 48). The lack of hierarchy between those criteria is due to the fact that the situation can change quickly following a marriage breakdown.

11      It is apparent from the Court’s case-law that those criteria, which are objective, alternative and exclusive, meet the need for rules that address the specific requirements of conflicts relating to the dissolution of matrimonial ties (judgment in IB, paragraph 32). With regard to the choice of grounds of jurisdiction, A. Borrás stated that ‘the Forums of jurisdiction adopted are designed to meet objective requirements, are in line with the interests of the parties, involve flexible rules to deal with mobility and are intended to meet individuals’ needs without sacrificing legal certainty’, 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, prepared by Dr Alegría Borrás, Professor of Private International Law at the University of Barcelona (OJ 1998 C 221, p. 27; ‘the Borrás Report’), p. 36, paragraph 27.

12      While the first to fourth indents of Article 3(1)(a) of Regulation No 2201/2003 expressly refer to the habitual residence of the spouses and of the respondent as criteria, the fifth and sixth indents of Article 3(1)(a) permit the application of the jurisdiction rules of the forum actoris. See, in particular, judgment of 13 October 2016, Mikołajczyk (C‑294/15, EU:C:2016:772, paragraph 41).

13      The scope of Section 1 of Regulation No 2201/2003, which is entitled ‘Divorce, legal separation and marriage annulment’, and which appears in Chapter II of that regulation, is determined, in accordance with Articles 6 and 7 of that regulation, by the ‘habitual residence’ in the territory of a Member State of the spouse in question or by their nationality. I will return later to the effect of that delimitation on the dispute in the main proceedings. See points 98 and 129 of this Opinion.

14      The concept of ‘habitual residence’ also appears in Articles 9 to 13, 15, 18, 29, 33, 42, 51, 57, 61 and 66 of Regulation No 2201/2003.

15      See, to that effect, Borrás, A., ‘Article 3’, in Magnus, U. and Mankowski, P. (eds), Brussels II bis Regulation, European Commentaries on Private International Law, Sellier European Law Publishers, 2012, p. 90, point 8.

16      It should be noted, in that regard, that the lack of definition of that concept is, in general terms, rooted in the tradition of the Hague Conference on Private International Law. Such a definition ‘would have risked disturbing the interpretation of numerous other conventions using the same concept’. See, in that regard, Lagarde, P., Explanatory Report on 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 (Text adopted by the Eighteenth Session of the Hague Conference on Private International Law, available in English at the internet address: http://www.hcch.net/upload/expl34.pdf) (‘the Lagarde Report’). Proceedings of the Eighteenth Session of the Hague Convention of Private International Law (1996), vol. II, p. 552, point 40. On the relevance of the Lagarde Report for the interpretation of the provisions of Regulation No 2201/2003, see, inter alia, recital 3 of that regulation. As regards, in particular, Regulation No 2201/2003, see the Borrás Report, p. 38, paragraph 32.

17      So far as concerns the concept of the ‘habitual residence’ of a child, see judgments of 2 April 2009, A (C‑523/07, EU:C:2009:225, paragraph 31), and of 9 October 2014, C (C‑376/14 PPU, EU:C:2014:2268, paragraph 50). With regard to the concept of the ‘habitual residence’ of an infant, see judgments of 22 December 2010, Mercredi (C‑497/10 PPU, EU:C:2010:829, paragraphs 44 to 46); of 8 June 2017, OL (C‑111/17 PPU, EU:C:2017:436, paragraph 40); and of 28 June 2018, HR (C‑512/17, EU:C:2018:513; ‘judgment in HR’; paragraph 40). I will return to that case-law in the context of my analysis relating to the third question.

18      Judgment in IB (paragraph 38).

19      See, in particular, judgment in IB (paragraph 39 and the case-law cited).

20      Judgment in IB (paragraph 40). See, also, Opinion of Advocate General Campos Sánchez-Bordona in IB (Habitual residence of a spouse – Divorce) (C‑289/20, EU:C:2021:561). See, in that regard, Article 66(a) of Regulation No 2201/2003.

21      See points 43 and 44 of this Opinion.

22      See point 69 of this Opinion. I will come back to that article later.

23      See, to that effect, judgment of 22 December 2010, Mercredi (C‑497/10 PPU, EU:C:2010:829, paragraphs 44 and 51), and, more recently, judgment in IB (paragraph 41).

24      See, in particular, judgment in HR (paragraphs 45 and 46 and the case-law cited).

25      It is apparent from that report that ‘although not applicable under the [Brussels Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (signed on 27 September 1968) (OJ 1972 L 299, p. 32; “the 1968 Brussels Convention”)], particular account was taken of the definition given on numerous occasions by the Court of Justice, i.e. “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 purposes of determining such residence”’ (the Borrás Report, p. 38, paragraph 32).

26      See point 33 of this Opinion.

27      Judgment in IB (paragraph 44). See, also, recital 1 of Regulation No 2201/2003 and the Borrás Report, p. 36, paragraph 27.

28      See, to that effect, judgment in HR (paragraph 41 and the case-law cited).

29      See, to that effect, judgment in IB (paragraph 56).

30      Judgment in IB (paragraph 56), and judgment of 13 October 2016, Mikołajczyk (C‑294/15, EU:C:2016:772, paragraph 50 and the case-law cited).

31      Judgment in IB (paragraph 45), and judgment of 13 October 2016, Mikołajczyk (C‑294/15, EU:C:2016:772, paragraphs 46 and 47 and the case-law cited).

32      Judgment in IB (paragraph 46). See, also, Opinion of Advocate General Campos Sánchez-Bordona in IB (Habitual residence of a spouse – Divorce) (C‑289/20, EU:C:2021:561, point 94): ‘… each time a party claims to have two or more habitual residences, it will be necessary to establish whether those residences really are habitual. Ultimately, it increases the risk that a “de facto” residence (and not the habitual residence for the purposes of Article 3 of Regulation No 2201/2003) will eventually determine the court having international jurisdiction.’

33      Judgment in IB (paragraph 51).

34      See, to that effect, judgment in HR (paragraphs 44 to 46 and the case-law cited).

35      So far as concerns the place of habitual residence of an infant, see judgment in HR (paragraph 66). In particular, the Lagarde Report points out that the infant’s temporary absence from his or her place of habitual residence for a holiday does not, in principle, change the place of habitual residence.

36      In that regard, the Commission explains that the posts in the delegations are highly coveted and that the decision on secondments is taken having regard to the wishes of the individuals seconded.

37      I recall that it is apparent from the order for reference that the spouses resided in Guinea-Bissau from August 2010 to February 2015.

38      See, in that regard, footnote 36 and point 48 of this Opinion.

39      See, to that effect, judgment in HR (paragraph 46 and the case-law cited).

40      See, with regard to the interpretation of the fifth and sixth indents of Article 3(1)(a) of Regulation No 2201/2003, Opinion of Advocate General Campos Sánchez-Bordona in IB (Habitual residence of a spouse – Divorce) (C‑289/20, EU:C:2021:561, point 66).

41      This is not the case of a stay in the context of a business trip in a third State by doctors or nurses within the framework of ad hoc missions of humanitarian organisations or soldiers within the framework of certain types of missions.

42      Regulation No 2201/2003 makes it possible to determine only whether or not the habitual residence is in the territory of a Member State.

43      Article 1 of Regulation No 4/2009 provides that it ‘[applies] to maintenance obligations arising from a family relationship, parentage, marriage or affinity’. See, also, recital 11 of that regulation.

44      It should be pointed out that Regulation No 4/2009 does not make the applicability of rules on jurisdiction subject to the condition that the defendant is resident in a Member State. See recital 15 of Regulation No 4/2009: ‘… 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. This Regulation should therefore determine the cases in which a court in a Member State may exercise subsidiary jurisdiction.’

45      It should be noted that, in matters relating to divorce, it is a question of determining the place of habitual residence of both spouses, one of the spouses or the defendant; in matters relating to parental responsibility, it is a question of determining the place of habitual residence of the parents and/or the children; and, in matters relating to maintenance obligations, it is a question of determining the place of habitual residence of the creditor or defendant.

46      Judgment of 18 December 2014, Sanders and Huber (C‑400/13 and C‑408/13, EU:C:2014:2461, paragraphs 26 to 29).

47      Recitals 22, 25, 31, 33, 35 and 45 of Regulation No 4/2009 assert the objective to ensure the (swift and efficient) recovery of maintenance obligations in cross-border situations and thus to facilitate the free movement of persons within the European Union.

48      See point 50 of this Opinion.

49      With regard to the correspondence between the concept of ‘habitual residence’ in Regulation No 4/2009 and that in Articles 3 (concerning adults) and 7 (concerning children) of 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 (OJ 2019 L 178, p. 1), see Hess, B., ‘Towards a Uniform Concept of Habitual Residence in European Procedural and Private International Law?’, Polski Proces Cywilny, No 4, 2021, pp. 523-542, in particular p. 528.

50      Text adopted by the Twenty-First Session of the Hague conference on International Private Law; ‘the Bonomi Report’.

51      See Wouters, J. and Duquet, S., ‘The EU and International Diplomatic Law: New Horizons?’, The Hague Journal of Diplomacy, vol. 7, No 1, 2012, pp. 31-49, in particular p. 44. According to those authors, ‘the EU’s diplomatic network is made subject to the Vienna Convention through specific agreements with the host country. Most states have accepted the according of privileges and immunities to EU delegations, their staff and their property in this manner. However, the specific provisions and legal frameworks may differ according to the party concerned’.

52      I note that at issue is the habitual residence of different persons, in the present case, that of the spouses, that of the father or mother and that of the maintenance creditor.

53      With regard to the concept of a child’s place of ‘habitual residence’, see judgments of 2 April 2009, A (C‑523/07, EU:C:2009:225, paragraphs 34 and 35), and of 9 October 2014, C (C‑376/14 PPU, EU:C:2014:2268, paragraph 50). So far as concerns the concept of an infant’s place of ‘habitual residence’, see judgments of 22 December 2010, Mercredi (C‑497/10 PPU, EU:C:2010:829, paragraphs 44 to 46); of 8 June 2017, OL (C‑111/17 PPU, EU:C:2017:436, paragraph 40); and in HR (paragraph 40).

54      See, in particular, to that effect, judgment in HR (paragraph 41).

55      See, in particular, judgment of 15 February 2017, W and V (C‑499/15, EU:C:2017:118, paragraph 61).

56      See, to that effect, judgment in HR (paragraph 41). In my view, the Court’s use of the words ‘some degree of integration’ indicates that it there is no requirement that such integration be complete or total. See also, to that effect, judgment in IB.

57      See, to that effect, judgment in HR (paragraph 42).

58      If, like in the present case, those factors are focused on the territory of a third State, in the context of Regulation No 2201/2003, the referring court can determine the children’s place of habitual residence as not being located in a Member State rather than as being located in that third State.

59      Judgment in HR (paragraph 43 and the case-law cited).

60      See, in particular, judgment in HR (paragraphs 45 and 46 and the case-law cited).

61      In that regard, see, in particular, to that effect, judgment in HR (paragraphs 52 to 54 and the case-law cited).

62      The interpretation advocated by the Spanish Government in its written observations seems to point in that direction. See point 80 of this Opinion.

63      Except for some amendments of an essentially formal nature, it must be noted that Regulation 2019/1111 has not changed the rules on international jurisdiction in matrimonial matters. The EU legislature thus maintained the system of residual jurisdiction provided for in Articles 6 and 7 of Regulation No 2201/2003, now in Article 6 of Regulation 2019/1111. Article 104 of Regulation 2019/1111 provides that, subject to Article 100(2) of that regulation, Regulation No 2201/2003 is repealed from 1 August 2022.

64      The complexity of the relationship between Articles 6 and 7 of Regulation No 2201/2003 has been criticised on numerous occasions in legal writings. See, in particular, Borrás, A., ‘Article 6’, op. cit., p. 98, point 2. In that regard, it should be noted that, in the 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, p. 8), the Commission proposed deleting Article 6: ‘The public consultation revealed that this provision may cause confusion. It is also superfluous since Articles 3, 4 and 5 describe in which circumstances a court has exclusive competence where a spouse is habitually resident in the territory of a Member State …’

65      According to the Commission, ‘Article 7 [of Regulation No 2201/2003] currently refers to the national rules on international jurisdiction in situations where the spouses are not habitually resident in the territory of a Member State and do not have common nationality’ (see COM(2006) 399 final, p. 9).

66      Judgment of 29 November 2007, Sundelind Lopez (C‑68/07, EU:C:2007:740, paragraph 26). According to the Court, recitals 4 and 8 of 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 (OJ 2000 L 160, p. 19), whose provisions on the jurisdiction to hear questions relating to divorce are essentially repeated in Regulation No 2201/2003, must also be taken into account in the interpretation of the provisions of Regulation No 2201/2003. See, in that regard, also, Ní Shúilleabháin, M., Cross-Border Divorce Law. Bruxelles II bis, Oxford Private International Law Series, 2010, p. 30, point 1.43.

67      Recital 2 of Regulation No 2201/2003 thus states that the mutual recognition of judicial decisions is ‘the cornerstone for the creation of a genuine judicial area’. See, also, recital 23 of that regulation; the conclusions of the Tampere European Council of 15 and 16 October 1999, point 34, available at http://www.europarl.europa.eu/summits/tam_en.htm; and Commission working document ‘Mutual recognition of decisions on parental responsibility’, COM(2001) 166 final, p. 3.

68      Judgment of 29 November 2007 (C‑68/07, EU:C:2007:740).

69      Judgment of 29 November 2007, Sundelind Lopez (C‑68/07, EU:C:2007:740, paragraph 22).

70      See Ní Shúilleabháin, M., op. cit., p. 157, paragraph 4.33. See, also, Kruger, T. and Samyn, L., ‘Brussels II bis: successes and suggested improvements’, Journal of Private International Law,·2016, pp. 1-37, in particular p. 8; and Campiglio, C., ‘Conflitti positivi et negativi di giurisdizione in materia matrimoniale’, Rivista di diritto internazionale privato et processuale, No 3, 2021, pp. 497-532, in particular p. 522.

71      Pataut, É., ‘Codifier le divorce international : Quelques remarques sur le projet GEDIP’, AUC IURIDICA, No 66, 2020, pp. 95-115, in particular p. 103.

72      See point 129 of this Opinion. In that regard, it should be noted that legal writings question the expediency of retaining residual jurisdiction provided for in Regulation No 2201/2003 as well as the appropriateness of replacing it with ‘uniform’ jurisdiction. See, in particular, Bonomi, A., ‘La compétence internationale en matière de divorce. Quelques suggestions pour une (improbable) révision du règlement Bruxelles II bis’, Revue critique de droit international privé, vol. 4, No 4, 2017, pp. 511-534, in particular p. 522 et seq.; and Pataut, É., loc. cit., p. 104 et seq.

73      In the case giving rise to the judgment of 29 November 2007, Sundelind Lopez (C‑68/07, EU:C:2007:740), the applicant resided in a Member State other than that of which she was a national. By contrast, as noted in legal writings, in so far as some Member States do not recognise, under national law, jurisdiction which may be qualified as ‘residual’ in the light of Article 3 of Regulation No 2201/2003, the problem arises when one spouse is a national of a Member State and both spouses reside in a third State. See the Borrás Report, paragraph 47. See, also, Borrás, A., ‘Article 6’, op. cit., p. 102, paragraph 13.

74      Judgment of 17 October 2018, UD (C‑393/18 PPU, EU:C:2018:835, paragraph 57).

75      Judgment of 17 October 2018, UD (C‑393/18 PPU, EU:C:2018:835, paragraph 66).

76      See Pataut, É., ‘Articles 10-15’, in Magnus, U. and Mankowski, P. (eds), Brussels II bis Regulation, European Commentaries on Private International Law, Sellier European Law Publishers, 2012, Article 14, p. 162, paragraph 4.

77      See Bonomi, A., op. cit., in particular p. 514.

78      With regard to Article 12(3) of Regulation No 2201/2003, some authors consider that a flexible and broad interpretation of that provision also makes it possible to comply with the functioning of Article 15 of that regulation, which provides for the transfer to a court the best placed to hear the case. See Pataut, É., ‘Articles 10-15’, op. cit., p. 157, paragraph 53. By contrast, other authors take the opposite view. In particular, Ancel, B. and Muir Watt, H., consider that ‘the prorogation provided for by that provision invalidates the mechanism of transferring jurisdiction to a court better placed to hear the case laid down in Article 15 of that regulation, which reflects the 1996 Convention. In those circumstances, it is more appropriate to adopt a strict interpretation which recognises Article 12(3) as merely adapting Article 3(2) of the Brussels II bis Regulation to the new system of jurisdiction and which does not therefore permit the prorogation of jurisdiction to the courts of the Member State where proceedings relating to divorce, annulment or separation have been brought on the basis of residual jurisdiction (Article 7 of the regulation: jurisdiction under ordinary international private law)’: Ancel, B. and Muir Watt, H., ‘Aliments sans frontières. Le règlement (CE) No 4/2009 du 18 décembre 2008 relatif à la compétence, la loi applicable, la reconnaissance et l’exécution des décisions et la coopération en matière d’obligations alimentaires’, Revue critique de droit international privé, 2010, No 3, pp. 457-484, in particular p. 476, paragraph 18.

79      Judgments of 12 November 2014, L (C‑656/13, EU:C:2014:2364, paragraph 39), and of 6 October 2015, Matoušková (C‑404/14, EU:C:2015:653, paragraph 36). By contrast, the choice of court is not permitted in matters relating to divorce.

80      See Franzina, P., ‘Forum Necessitatis’, in Viarengo, I. and Villata, F.C. (eds), Planning the Future of Cross Border Families: A Path Through Coordination (Studies in Private International Law), Oxford, Hart Publishing, 2020, pp. 325-330, in particular p. 326.

81      Judgment of 16 July 2015 (C‑184/14, EU:C:2015:479).

82      Judgment of 16 July 2015, A (C‑184/14, EU:C:2015:479, paragraphs 47 and 48).

83      In matters relating to parental responsibility, the Spanish courts have jurisdiction, in particular ‘where the applicant is Spanish’.

84      According to the referring court, under Article 22c(d) of the LOPJ, the Spanish courts do not, however, have jurisdiction in matters relating to divorce.

85      Even though, as I have stated in my Opinion in R (Jurisdiction for parental responsibility and maintenance) (C‑468/18, EU:C:2019:649, point 72), the fact that the application concerning the maintenance obligation is ancillary to an application concerning parental responsibility, within the meaning of Article 3(d) of Regulation No 4/2009, does not have the effect of precluding a court of a Member State from having jurisdiction on the basis of Article 3(a) of that regulation or, failing that, of Article 5 of that regulation.

86      ‘unless that jurisdiction is based solely on the nationality of one of the parties’.

87      It is not apparent from the order for reference that the parties to the main proceedings made a choice of court (Article 4) or that the defendant entered an appearance for a reason other than to contest the jurisdiction of the court seised (Article 5). I point out, however, that, in accordance with Article 4(3) of Regulation No 4/2009, Article 4 of that regulation does not apply to a dispute relating to a maintenance obligation towards a child under the age of 18.

88      Article 6 of Regulation No 4/2009 provides for subsidiary jurisdiction based on the common nationality of the parties.

89      Some legal writings note however that it is not certain that the situation in which the proceedings ‘cannot reasonably be brought or conducted or would be impossible in a third State’ covers other obstacles in securing maintenance than those of a strictly procedural nature. See Ancel, B. and Muir Watt, H., op. cit., in particular p. 483.

90      In particular where the payment of a security of a high amount is required.

91      In particular in the case of floods or other natural disasters.

92      For example, where there is a risk of a denial of justice on grounds of sexual orientation, religion or race, or where the courts in question request unacceptable and discriminatory evidence.

93      Lagarde, P., ‘Le for de nécessité dans les règlements européens’, Europa als Rechts- und Lebensraum: Liber Amicorum für Christian Kohler zum 75. Geburtstag am 18. Juni 2018, Kohler, C., Hess, B., Jayme, E., Mansel, H.‑P. (eds), Bielefeld, 2018, pp. 255-267, in particular p. 262.

94      In that regard, in matters of succession, see my Opinion in RK (Declining of jurisdiction) (C‑422/20, EU:C:2021:565, point 60 and footnote 35).

95      Normally, one of the parents representing the maintenance creditor but also a public body to which the maintenance claims are transferred by way of statutory subrogation. See judgment of 17 September 2020, Landkreis Harburg (Public body subrogated to the maintenance creditor) (C‑540/19, EU:C:2020:732).

96      Franzina, P., ‘Forum Necessitatis’, op. cit., p. 327.

97      See my Opinion in KP (C‑83/17, EU:C:2018:46, point 53).

98      In that regard, see, in particular, Ancel, B. and Muir Watt, H., op. cit., p. 483.

99      Judgment of 16 July 2015, A (C‑184/14, EU:C:2015:479, paragraph 46).

100      See point 23 of this Opinion.

101      Even if, formally, the application for maintenance is brought by the maintenance creditor, that application is considered to have been brought by the mother (representing her children). See the report of the Committee on the Elimination of All Forms of Discrimination against Women, Concluding observations on the sixth and seventh periodic reports of Togo, adopted by the Committee at its fifty-third session (1-19 October 2012), p. 3, available at the internet address: https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CEDAW/C/TGO/CO/6-7&Lang=En: ‘The Committee is concerned about the lack of effective access to justice for women and about the multiple factors that prevent them from effectively accessing justice, such as … [inter alia] the stigmatisation of women who bring their cases to courts.’

102      See, in particular, judgment of 7 November 2019, UNESA and Others (C‑80/18 to C‑83/18, EU:C:2019:934, paragraph 37), and order of 15 January 2020, Corporate Commercial Bank (C‑647/18, not published, EU:C:2020:13, paragraph 38).

103      See Szpunar, M. and Pacula, K., ‘Forum of necessity in family matters within the framework of EU and international law’, Polski Proces Cywilny, No 4, 2021, pp. 563-592, in particular p. 584, as well as the authors cited in footnote 99.

104      See, in that regard, Fernández Arroyo, D.P., ‘Compétence exclusive et compétence exorbitante dans les relations privées internationales’, Recueil des cours, vol. 323, Académie de droit international de La Haye, 2006, pp. 11-259, in particular pp. 75 and 76: ‘… it seems that the essential purpose of the forum necessitatis is not to justify the intervention of courts in cases in which they have no jurisdiction, but to guarantee the fundamental right of access to justice.’

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