Judgment;Summary — ECLI:EU:C:2023:553
Date: 2023-07-06
Language of the case: German
Court formation: Fourth Chamber
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary C-462/22 – 1 
Case C-462/22 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
11 July 2022 
Referring court: 
Bundesgerichtshof (Germany) 
Date of the decision to refer: 
25 May 2022 
Applicant and appellant: 
BM 
Respondent and respondent in the appeal on a point of law: 
LO 
  
Subject matter of the main proceedings 
International jurisdiction in divorce matters – Regulation No 2201/2003 – Fifth 
and sixth indents of Article 3(1)(a) thereof – Waiting period begins to run only 
upon establishment of the applicant’s habitual residence in the Member State of 
the court seised or already in the case of mere de facto residence 
Subject matter and legal basis of the request 
Interpretation of EU law, Article 267 TFEU 
Question referred for a preliminary ruling 
The following question is referred to the Court of Justice of the European Union 
for a preliminary ruling on the interpretation of Article 3(1)(a) of Council 
Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and 
the recognition and enforcement of judgments in matrimonial matters and the 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-462/22 
 
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matters of parental responsibility, repealing Regulation (EC) No 1347/2000 
(‘Brussels IIa Regulation’): 
Does the waiting period of one year or six months under the fifth and sixth 
indents, respectively, of Article 3(1)(a) of the Brussels IIa Regulation begin to run 
with respect to the applicant only upon establishment of his or her habitual 
residence in the Member State of the court seised, or is it sufficient if, at the 
beginning of the relevant waiting period, the applicant initially has mere de facto 
residence in the Member State of the court seised, and his or her residence 
becomes established as habitual residence only subsequently, in the period before 
the application was made? 
Provisions of European Union law relied on 
Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning 
jurisdiction and the recognition and enforcement of judgments in matrimonial 
matters and the matters of parental responsibility, repealing Regulation (EC) 
No 1347/2000, in particular Article 3(1)(a) 
Provisions of international law relied on 
Hague Convention of 1 June 1970 on the Recognition of Divorces and Legal 
Separations, in particular Article 2(2)(a) 
Succinct presentation of the facts and procedure in the main proceedings 
1 The proceedings concern the divorce of the applicant, born in 1959 (‘the 
husband’), of German nationality, and his wife, born in 1969, who is a Polish 
national. They married in Konstancin-Jeziorna (Poland) in 2000. Their marriage 
produced twin sons, born in 2003. 
2 After initially living in Germany for a number of years, the couple moved to 
Poland in the mid-2000s, into a house they had built in Konstancin-Jeziorna, in 
which the wife still lives today. They are also the joint owners of a dwelling in 
Warsaw, which they had rented until September 2012, after which it was at their 
full disposal. 
3 The husband was a senior executive of a pharmaceuticals manufacturer. Since 
April 2010, he has been employed as the managing director for the Central Europe 
region, which includes Poland and the Netherlands, but not Germany. His activity 
is largely characterised by business trips and working from home. His employer 
provided him with staff accommodation in Aerdenhout (Netherlands), in which he 
resided on an occasional basis until the end of 2013. The husband has a self-
contained dwelling in a house occupied by his parents, in Hamm (Germany). 
BM 
 
3 
4 The husband filed a divorce application with the Amtsgericht Hamm (District 
Court, Hamm) on 27 October 2013. He submitted that his habitual residence had 
been in Hamm since mid-2012 at the latest. He moved out of the house in 
Konstancin-Jeziorna in June 2012. Since June 2012, he has deepened his 
relationship with his new cohabiting partner in Hamm and has been caring for his 
sick parents. During his stays in Poland, he was limited to having contact with his 
two sons, which was always tied in with business trips. 
5 The wife challenged the international jurisdiction of the German courts and 
submitted that the husband did not move out of the house in Konstancin-Jeziorna 
until the beginning of April 2013 and then lived in the jointly owned dwelling in 
Warsaw. They took turns picking up the two sons from school in Warsaw on 
alternate days during the second semester of the 2012/2013 academic year. The 
husband resided almost exclusively in the Netherlands or Poland between April 
and November 2013. 
6 On 19 November 2013, the wife filed her own divorce application in Poland, with 
the Sad Okręgowy w Warszawie (Regional Court, Warsaw). 
7 The Amtsgericht Hamm (District Court, Hamm) considered that the German 
courts lack international jurisdiction, and it dismissed the husband’s application as 
inadmissible. His appeal on the merits was dismissed by the Oberlandesgericht 
(Higher Regional Court). The husband’s appeal on a point of law, lodged with the 
referring court, is directed against the decision of the Oberlandesgericht (Higher 
Regional Court). 
8 The Oberlandesgericht (Higher Regional Court) concluded that the husband’s 
habitual residence had been in Germany at the time when he filed his divorce 
application, on 27 October 2013. However, he had not yet been habitually resident 
in Germany for six months before he filed his divorce application (on 27 April 
2013). That assessment does not appear to be vitiated by any errors of law and is 
therefore binding on the referring court. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
9 The decision on the appeal on a point of law hinges on whether mere de facto 
residence in the Member State of the court is sufficient for the commencement of 
the waiting period under the fifth and sixth indents of Article 3(1)(a) of the 
Brussels IIa Regulation, or whether – as held by the Oberlandesgericht (Higher 
Regional Court) – the applicant must have already established his or her habitual 
residence in the Member State of the court six months (or, respectively, one year) 
before the filing of the divorce application. If the view taken by the 
Oberlandesgericht (Higher Regional Court) is correct, the husband’s appeal on a 
point of law would have to be dismissed because he did not yet have his habitual 
residence in Germany on 27 April 2013. If that view is not correct, his appeal on a 
point of law would be successful because, in accordance with the findings of the 
Oberlandesgericht (Higher Regional Court), it must be assumed that he could 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-462/22 
 
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fulfil the waiting period by virtue of the taking into account of periods of his de 
facto residence in Germany (see, regarding the possibility to have residence in 
several places at the same time, judgment of 25 November 2021, C-289/20, 
EU:C:2021:955, paragraph 55). 
10 There is disagreement as to how the fifth and sixth indents of Article 3(1)(a) of the 
Brussels IIa Regulation are to be interpreted in that respect. 
11 According to one widely held view in the German-language legal literature, the 
applicant must have already had habitual residence in the Member State of the 
court at the beginning of the waiting period. That view is based primarily on a 
teleological interpretation of the provision and emphasises that, in order to 
exclude manipulation of jurisdiction to the detriment of the respondent, the 
applicant must prove his or her sufficiently close connection with the Member 
State of the court by virtue of habitual residence of a certain duration. By contrast, 
according to other opinions expressed in the legal literature, periods of mere de 
facto residence of the applicant should count towards the waiting period. They 
argue that, on the basis of the unambiguous wording of the fifth and sixth indents 
of Article 3(1)(a) of the Brussels IIa Regulation, ‘habitual residence’ is not 
required. 
12 The question at issue has not been clarified by the case-law of the Court to date. In 
Case C-289/20 (judgment of 25 November 2021, EU:C:2021:955, paragraph 59), 
the Court stated, in connection with the application of the sixth indent of 
Article 3(1)(a) of the Brussels IIa Regulation, that the applicant in that case had 
satisfied ‘the condition … of having resided in that Member State for at least six 
months immediately before lodging his application for the dissolution of 
matrimonial ties’. Although the Court refers to the fact of having ‘resided … 
for … six months’ and not expressly to the fact of having ‘habitually resided … 
for … six months’, it seems doubtful that it thereby intended to comment on the 
question as to whether there must be habitual or mere de facto residence at the 
start of the waiting period, because there was no need to address that issue in the 
circumstances of the dispute at the time. 
13 The referring court is inclined to take the view that only habitual residence of the 
applicant in the Member State of the court can trigger the waiting period. 
14 It is true that the wording of the fifth and sixth indents of Article 3(1)(a) of the 
Brussels IIa Regulation could point in a different direction. They state that 
jurisdiction is to lie with the courts of the Member State in whose territory the 
applicant is habitually resident if he or she resided (and not ‘habitually resided’) 
there for at least a year (or, respectively, six months) immediately before the 
application was made. The referring court is also unable to derive from either the 
English or the French language version of that regulation a clearer link between 
the waiting period and the requirement of habitual residence. 
BM 
 
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15 In that connection, reference should also be made to the Hague Convention on the 
Recognition of Divorces and Legal Separations, which is in force in a number of 
Member States of the European Union and is worded in linguistically 
unambiguous terms in this respect. According to Article 2(2)(a) of that 
convention, divorces and legal separations are to be recognised in all other 
Contracting States, if, at the date of the institution of the proceedings in the State 
of origin, the petitioner had his or her habitual residence there and ‘such habitual 
residence had continued for not less than one year immediately prior to the 
institution of proceedings’. The English and French language versions of that 
convention are worded in an equally clear manner. 
16 However, the referring court does not consider that the decision not to use in the 
fifth and sixth indents of Article 3(1)(a) of the Brussels IIa Regulation a 
formulation with a degree of clarity similar to that of the formulation in 
Article 2(2) of the Hague Convention was intended to make a specific statement. 
That decision could possibly also be explained by an attempt to improve the 
readability of the provision. The 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 (OJ 1998 
C 221, p. 27) states, in paragraph 32, that forum actoris in the regulation is to be 
allowed ‘on the basis of habitual residence combined with other elements’. It is 
true that neither the German nor the English language version of that report 
provides any information as to whether those other elements consist precisely in 
the fact that the applicant must have had habitual residence during the entire 
waiting period prior to the filing of the divorce application. By contrast, both the 
French and the Spanish language versions of the report contain clear indications 
militating in favour of the interpretation whereby habitual residence in the 
Member State of the court during the entire waiting period is required under the 
fifth and sixth indents of Article 3(1)(a) of the Brussels IIa Regulation. 
17 A narrow interpretation of the fifth and sixth indents of Article 3(1)(a) of the 
Brussels IIa Regulation is further supported by the fact that the rules of 
jurisdiction provided for therein constitute special privileged treatment of the 
applicant, with the result that there is a need for special protection of the 
respondent, who in most cases has no connection to the Member State of the court 
seised by the applicant. 
18 The requirement that the applicant must have been habitually resident in the State 
of the court during the entire waiting period is also not precluded by the general 
consideration that criteria establishing jurisdiction are in principle intended to be 
easy to determine, in order to make the application of the law predictable and to 
ensure uniform application of the regulation in all Member States. It is true that an 
ex-post assessment of the question as to whether the applicant’s residence in the 
State of the court was already ‘habitual’ at the beginning of the waiting period is 
associated with considerable factual uncertainties and difficulties. However, such 
problems are likely to arise only in a very small number of cases. When a spouse 
in a situation of marriage breakdown leaves the place where the two spouses were 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-462/22 
 
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previously resident and moves to another Member State, this usually entails the 
return to what was that spouse’s residence before he or she was married or to the 
residence of his or her nationality. It can then be assumed that it is possible for a 
spouse to acquire habitual residence almost immediately or at least after a short 
period of time, with the result that, as a general rule, practically his or her entire 
residence in the other Member State will constitute habitual residence (see 
Opinion of Advocate General Campos Sánchez-Bordona of 8 July 2021 in Case 
C-289/20, EU:C:2021:561, point 60).