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The OE/VY case: the CJEU takes a pragmatic approach to the nationality privilege of Article 3(1)(a) Brussels IIa Regulation (Johan Meeusen – comment on ECJ, 10 February 2022, C-522/20)

On 10 February 2022, the Court of Justice of the EU (CJEU) rendered its judgment in case C-522/20, OE/VY (; ECLI:EU:C:2022:87). It ruled that the sixth indent of Article 3(1)(a) of the Brussels IIa Regulation (Regulation 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility), which grants a procedural advantage to nationals of the forum state, does not violate Article 18 TFEU and its prohibition of nationality discrimination.

Although it is brief and has even been delivered without an Advocate General’s Opinion, this judgment of the Court’s third chamber is interesting in several respects. This comment holds a brief analysis of the judgment. We refer to the text of the judgment itself for the full description of the facts of this case, which the Supreme Court of Austria had referred to the CJEU for a preliminary ruling, and for the details of the Court’s reasoning.

The Italian OE had married the German VY in Ireland, where the couple habitually resided. The marriage didn’t last however, and OE filed for divorce in Austria where he resided after the couple’s break-up. The dispute concerns the jurisdiction of the Austrian court. According to the fifth indent of Article 3(1)(a) of Brussels IIa, the courts of the Member State of the applicant’s habitual residence have jurisdiction if he or she has resided there for at least a year immediately before the application was made. In case the applicant has the nationality of that Member State, however, habitual residence for a period of six months only is sufficient for jurisdiction. The question submitted to the CJEU is whether this distinction, and the nationality privilege it holds, is compatible with Article 18 TFEU’s prohibition of discrimination on grounds of nationality.

According to the Court, the jurisdiction rules in Article 3 Brussels IIa seek to ensure a balance between the mobility of individuals within the EU, in particular by protecting the rights of the spouse who has left the Member State where the couple had their shared residence, and legal certainty, in particular that of the other spouse, by ensuring that there is a real link between the applicant and the Member State whose courts have jurisdiction to rule on the dissolution of the matrimonial ties concerned. In view of the latter objective, an applicant who leaves the shared habitual residence of the couple and returns to his or her country of origin, is not in a situation comparable to that of an applicant who does not hold the nationality of that Member State. Moreover, the Court does not consider this distinction on basis of the applicant’s nationality to prejudice the legal certainty of the other spouse. Therefore, the objective nature of the nationality criterion cannot be called into question without the EU legislature’s discretion being called into question. The Court eventually concludes that the distinction made by the EU legislature, on the basis of a criterion relating to the nationality of the applicant, in the fifth and sixth indents of Article 3(1)(a) Brussel IIa, does not constitute a difference in treatment on grounds of nationality prohibited by Article 18 TFEU.

The provision examined actually has always been controversial because of alleged discrimination. In academic doctrine, it has repeatedly been pointed out that nationality is an unconvincing distinguishing criterion here, since Union citizens can also develop a sufficiently real link with the forum state on other grounds than nationality. At first sight, therefore, the judgment appears to hold a ‘reality check’ for those who, referring to Union citizenship and the shared European judicial area, reject the continued reliance on nationality in EU private international law, in particular as regards jurisdiction.

A more thorough reading of the Court’s considerations, however, results in a more nuanced assessment. In our view, indeed, the judgment is mainly motivated by a certain pragmatism on the part of the Court, which appears reluctant to interfere, in a politically particularly sensitive domain, in the policy choices of the EU legislature. Moreover, a decision to the contrary might have had many repercussions in other domains and called into question a part of EU international family law, a set of rules which is politically hard-won but extremely important for day-to-day practice.

Before proceeding to the concrete assessment of the use of the nationality factor, the Court considers that account must be taken of the principles and objectives of the field to which Brussels IIa relates. It emphasizes that, in the exercise of its powers, the EU legislature enjoys a broad discretion where it intervenes in a field involving political, economic and social choices and where it is called on to undertake complex assessments and evaluations. A measure adopted in such an area is unlawful only if it is manifestly inappropriate for achieving the objective pursued by the competent institutions. And that, at least according to the Court which in that respect looks at the balance between mobility and legal certainty, is not the case here.

The Court hence refrains from a more principled discussion on the value of the nationality factor in EU private international law, opting instead for a pragmatic approach in which it expressly does not seek to replace the EU legislature and its policy choices. Still, it cannot be excluded that in real life particular situations can arise where the legal certainty of the other spouse would be threatened. Why then is the CJEU so reluctant to engage in a more in-depth examination?

Nationality is, of course, a familiar criterion in international family law, both that of the Member States and that of the Union, and both in terms of choice of law and jurisdiction. It was incorporated into Brussels IIa and its predecessors without too much legislative discussion; the new Brussels IIb Regulation 2019/1111, which applies from 1 August 2022, contains the same ground of jurisdiction in its Article 3(b)(vi).

Importantly, Article 3(1)(a) Brussels IIa does not confer a mere nationality privilege but requires, through the applicant’s habitual residence, an additional connection to the Member State of the forum. Other EU regulations conferring jurisdiction on grounds of nationality -the regulations on maintenance (4/2009), succession (650/2012), matrimonial and registered partnerships’ property (2016/1103 and 2016/1104)- also combine this factor with other grounds of jurisdiction. A different decision of the CJEU in OE/VY might therefore have had a negative impact on the assessment of the Treaty conformity of those other provisions as well and hence grave consequences for EU private international law more generally. Still, the harmonisation of international family law in the EU is no simple matter, due to the unanimity requirement of Article 81(3) TFEU against the background of very divergent views on the matter among the Member States. This may explain why, at least in the absence of circumstances directly impacting the free movement of Union citizens, there is little appetite on the part of the Court to interfere too strongly in this area. Moreover, the fact that the nationality criterion under consideration is set out in Union rather than national legislation, and thus applies equally to all nationals of the Member States, is perhaps not insignificant in this regard either.

Nevertheless, the impact of the OE/VY judgment must not be underestimated. While the Court may have taken a deliberately pragmatic and cautious approach, it also spoke in clear terms about the continuing importance of the nationality link. A person who is a national of a Member State has, according to the Court, not only institutional and legal ties with that Member State but “as a general rule” also “cultural, linguistic, social, family or property ties” (paragraph 31). It is an “objective factor” that “is necessarily known” to the spouse (paragraph 34) and thus plays an important role in ensuring legal certainty in family relationships (paragraph 36). Undoubtedly, the Court will not lose sight of this positive assessment of the weight and importance of nationality when it will later be questioned about the Treaty conformity of the nationality criterion in other cases, e.g. when examining the compatibility with the Treaty of non-harmonised Member State private international law rules.

Johan Meeusen
University of Antwerp