Judgment;Abstract — ECLI:EU:C:2025:197
Date: 2025-03-20
Language of the case: German
Court formation: Third Chamber
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters;Closer cooperation
Procedure: Reference for a preliminary ruling
Origin: Germany

summary at 
www.unalex.eu [decision LU-26]), which, however, was delivered in relation to 
Article 2(1)(a) 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 (‘the 
Brussels II Regulation’). 
34 The situation which formed the basis for that decision is comparable to that in the 
present case. The husband in that case was appointed as the Luxembourg 
ambassador to Greece and moved to Athens with his family a few years before the 
petition for divorce was filed. The Court of Appeal, Luxembourg, held that it 
could not be assumed that the husband had intended to establish the habitual 
centre of his interests in the receiving State. The duration of his residence in the 
receiving State depended exclusively on the duration of the performance of his 
diplomatic duties, the assignment of those duties being determined exclusively by 
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the government of the sending State. His residence in the receiving State was 
fortuitous, since the government could at any time assign him to a different post, 
which was limited in time, since such roles are generally limited to a few years, 
and uncertain, since the government could at any time assign him to a new 
position or role. In so far as the husband’s professional, but also family and social 
life took place mainly in the receiving State, that was merely the consequence of 
being entrusted with the role of diplomat. There was no intention on the part of the 
diplomat to integrate in the receiving State. Such integration in the receiving State 
could also be regarded as incompatible with the diplomatic role which requires 
maintaining independence vis-à-vis the receiving State. 
35 (c) The appeal on a point of law is based on the aforementioned decision and 
takes the view that the conditions for establishing habitual residence in the 
receiving State in respect of members of the diplomatic service are not fulfilled 
from the outset even in the context of Article 8 of the Rome III Regulation. 
Rather, the husband’s professional status as a diplomat at the German Embassy in 
Moscow precludes the establishment of habitual residence in Russia. While it is 
true that the residence of the parties in Moscow was not planned for a specific 
duration (in the sense of a fixed term), the fact remains that it was, by its nature, 
temporary and was not intended to be permanent. The parties had wanted to return 
to Germany at the latest after the end of the husband’s employment at the German 
Embassy in Moscow (or another foreign posting), as is clear from the fact that 
they had kept their rented apartment in Berlin, even if it had been partially sublet. 
When staying in Berlin, they could also continue to use the apartment. In addition, 
they did not freely choose to reside in Moscow, rather that residence was due to 
the fact that the husband, as a diplomatic agent, had been transferred to that 
country by his employer. Moreover, the parties were not able to rent an apartment 
in Moscow that they had freely chosen; on the contrary, they were obliged to take 
an apartment on the German Embassy compound for official reasons. Like other 
German diplomats, they had therefore lived in a geographically delimited area 
which, although it might not be considered extraterritorial in legal terms, in any 
case formed a kind of ‘German enclave’ from a professional, social and cultural 
point of view. That reduced the significance of the physical presence of the parties 
in Russia and prevented the establishment of social ties in that State. Even after 
they had taken up residence in Moscow, they maintained close ties to Germany. 
There were family ties with their adult daughter who has lived in the parties’ 
rented apartment since September 2019. 
36 In the appeal proceedings, the husband submitted that the spirit and purpose of the 
reference to habitual residence under Community law cannot be that diplomatic 
agents who, due to their official duties, enjoy immunity in the receiving State 
under Article 31(1) of the Vienna Convention on Diplomatic Relations of 18 April 
1961 (BGBl. II 1964, p. 957, 977), would normally be subject to the (divorce) law 
of the new State of residence as a result of any transfer to a new place of 
employment. 
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37 (d) To date, that question has not been clarified in the case-law of the Court of 
Justice. It is true that the Court has interpreted Article 3(1)(a) of the Brussels IIa 
Regulation and Article 3(a) and (b) 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 (‘the 
European Maintenance Regulation’) as meaning that the status of the spouses 
concerned as members of the contract staff of the European Union, working in the 
latter’s delegation to a third country and in respect of whom it is claimed that they 
enjoy diplomatic status in that third State, is not capable of constituting a decisive 
factor for the purposes of determining habitual residence, within the meaning of 
those provisions (see judgment of the Court of Justice of 1 August 2022, 
C-501/22, FamRZ, 2022, 1466, paragraph 58 et seq.). The present case concerns 
the Rome III Regulation, to which the case-law on the Brussels IIa Regulation and 
the European Maintenance Regulation cannot be readily transposed. In particular, 
the legal and factual conditions of the social environment in the State of residence 
are not relevant for the purposes of determining the relevant divorce law in the 
same way as for the assessment of the existence and the amount of a maintenance 
claim. Moreover, the abovementioned decision was not adopted in relation to 
diplomats, but to contract staff of the European Union who were not subject, at the 
headquarters in Brussels, to rotation and for whom it was not necessary to 
establish an intention to return to their State of origin. Furthermore, it is argued in 
the appeal on a point of law that the decisive question in the present case is not 
whether diplomatic status as such (and the resulting immunity) can preclude the 
establishment of habitual residence in the receiving State, but rather whether the 
nature and peculiarity of the activities of a diplomat employed at a diplomatic 
mission abroad preclude the assumption of habitual residence in the receiving 
State due to the circumstances of that role. 
38 (e) In the Chamber’s view, it is doubtful what influence the fact that the parties 
had to move to Moscow for an indefinite period because of the husband’s 
professional activity as a diplomat has on the establishment of habitual residence 
there. In any event, in the context of the assessment, account could also be taken 
of the fact that the parties did not choose to move to Moscow of their own free 
will, rather that move was due to the husband’s professional relocation. The same 
should apply to the fact that the (already limited) duration of his employment 
there is not substantially dependent on the husband’s will. In addition, the parties 
were not free to choose their place of residence in Russia and they retained their 
apartment in Berlin in order to be able to return there once the husband’s 
employment abroad had ended. If those circumstances were to be taken into 
account in the overall assessment, the question whether the parties could have 
established their habitual residence in Russia could be answered in the negative. 
In the absence of case-law of the Court of Justice on the matter, it is in any case 
not clear from the Chamber’s point of view how the posting as a diplomat affects 
the definition of ‘habitual residence’ in accordance with Article 8(a) and (b) of the 
Rome III Regulation. 
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39 3. Furthermore, it is not established which criteria are to be used to determine 
where the spouses are habitually resident within the meaning of Article 8(a) and 
(b) of the Rome III Regulation. In particular, it must be clarified whether the 
physical presence of the spouses in a State must be of a certain duration before it 
can be assumed that habitual residence had been established there and whether the 
establishment of habitual residence requires a certain degree of social and family 
integration in the State in question. Those questions are relevant to the outcome of 
the dispute since Russian substantive law would apply to the parties’ divorce only 
if the wife had (also) established her habitual residence in Russia and this had not 
ended more than one year before the Local Court was seised on 8 July 2021. The 
aforementioned questions would still be relevant to the judgment to be given even 
if it were considered – contrary to the opinion of the appeal court – that the wife 
had (re)established her habitual residence in Germany due to her physical 
presence in Berlin from January 2020 to February 2021. Even in that case, her 
return to Moscow in February 2021, when she still considered that there was a 
chance of continuing her marriage, could have immediately led to the 
(re)establishment of her habitual residence in Russia, if a minimum period of 
residence and social and family integration were not considered necessary in that 
regard. 
40 (a) According to the case-law of the Court of Justice, the concept of ‘habitual 
residence’ must be interpreted autonomously, taking into account the wording and 
the context of the provisions referring to that concept and the objectives of the 
respective regulation (see judgments of the Court of Justice of 6 July 2023, 
C-462/22, FamRZ, 2023, 1479, paragraph 26; of 25 November 2021, C-289/20, 
FamRZ, 2022, 215, paragraph 39; and of 28 June 2018, C-512/17, FamRZ, 2018, 
1426, paragraph 40, each case referring to the Brussels IIa Regulation). However, 
the Court has not yet ruled on the interpretation of that concept in the Rome III 
Regulation. 
41 (b) The way in which habitual residence is to be understood in Article 8(a) and (b) 
of the Rome III Regulation is a matter of disagreement in German legal literature. 
42 (aa) The first paragraph of recital 10 of the Rome III Regulation provides that the 
substantive scope and enacting terms of that regulation should be consistent with 
the Brussels IIa Regulation. The view is taken in some German legal literature – 
and by the appeal court – that the concept of ‘habitual residence’ in the Rome III 
Regulation must be understood in the same way as the same concept in the 
Brussels IIa Regulation (see Althammer/Mayer, Rome III, Article 5, paragraph 12; 
Althammer/Tolani, Rome III, Article 8, paragraph 6 et seq.; 
Jauernig/Budzikiewicz, BGB, 19th edition, Articles 5 to 16 of Regulation (EU) 
1259/2010, paragraphs 9 and 2; NK-BGB/Gruber, 3rd edition, Article 3 of the 
Rome III Regulation, paragraph 15; Grüneberg/Thorn, BGB, 83rd edition, 
Article 5 of the Rome III Regulation, paragraph 3; Andrae, Internationales 
Familienrecht, 4th edition, § 3 paragraph 26 and § 2 paragraph 64; Hausmann, 
Internationales und Europäisches Familienrecht, 2nd edition, paragraphs A 370 
LINDENBAUMER 
 
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and A 424; Winter, Internationales Familienrecht bei Fällen mit Auslandsbezug, 
paragraph 181; Gruber, IPRax, 2012, 381, 385). 
43 Relying on the case-law of the Court of Justice with regard to Article 3(1)(a) of 
the Brussels IIa Regulation (see judgments of the Court of Justice of 1 August 
2022, C-501/20, FamRZ, 2022, 1466, paragraph 44 and of 25 November 2021, 
C-289/20, FamRZ, 2022, 2015, paragraph 57 et seq.), the appeal court interpreted 
the concept of ‘habitual residence’ in Article 8(a) and (b) of the Rome III 
Regulation as being characterised, in principle, by two factors, namely, first, 
subjectively, the intention of the spouse to establish the habitual centre of his or 
her interests in a particular place (animus manendi) and, secondly, objectively, a 
presence which is sufficiently stable in that State. Before habitual residence can be 
transferred, it is of paramount importance that the person concerned has it in mind 
to establish in that State the permanent or habitual centre of his or her interests, 
with the intention that it should be of a lasting character. A minimum duration is 
not provided for, so that the duration of residence can at most serve as an indicator 
in the assessment of the permanence of the residence (see judgment of the Court 
of Justice of 22 December 2010, C-497/10 PPU, FamRZ, 2011, 617, 
paragraph 51). What has to date been the third element of social integration has 
however taken a back seat. 
44 (bb) By contrast, other voices in German legal literature consider that there is no 
complete congruence in the interpretation of the concept of ‘habitual residence’ 
for the purposes of determining international jurisdiction under the Brussels IIa 
Regulation and the divorce law based on conflict-of-laws rules under the Rome III 
Regulation since the ratio of the two connecting factors is different. Rather, 
habitual residence under the Rome III Regulation may well be assessed differently 
in cross-border cases than under the Brussels IIa Regulation (jurisPK-
BGB/Johanson, 10th edition, Article 8 of the Rome III Regulation, paragraph 5 
and Article 5 of the Rome III Regulation, paragraph 13; NK-BGB/Lugani, 3rd 
edition, Article 8 of the Rome III Regulation, paragraph 10 and Article 5 of the 
Rome III Regulation, paragraph 47 et seq.; Rauscher/Helms, EuZPR/EulPR, 4th 
edition, Article 8 of the Rome III Regulation, paragraphs 19 and 26; Helms, 
FamRZ, 2011, p. 1765, 1769 et seq.). In particular, the Rome III Regulation 
requires a stronger connection with the State of residence than the Brussels IIa 
Regulation, where it is regularly envisaged that the applicant has the choice 
between alternative jurisdictions (jurisPK-BGB/Johanson 10th edition, Article 5 
of the Rome III Regulation, paragraph 13). Therefore, even after a considerable 
period of time has passed, a decision as to whether the habitual residence of a 
married couple in accordance with Article 8(a) and (b) of the Rome III Regulation 
is already in another State can be made only after careful consideration of all the 
circumstances of the individual case (Rauscher/Helms, EuZPR/EuIPR, 4th edition, 
Article 8 of the Rome III Regulation, paragraph 19; Helms, FamRZ, 2011, 
p. 1765, 1770; see also Henrich, Internationales Scheidungsrecht, 5th edition, 
paragraph 86 et seq.). 
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45 (cc) According to recital 14 of the Rome III Regulation, in the absence of a choice 
of applicable law, the law with which the spouses have a close connection should 
apply even if it is not that of a participating Member State. In addition, it follows 
from recital 21 thereof that the Rome III Regulation should introduce harmonised 
conflict-of-law rules on the basis of a scale of successive connecting factors based 
on the existence of a close connection between the spouses and the law concerned. 
Such connecting factors should be chosen so as to ensure that proceedings relating 
to divorce or legal separation are governed by a law with which the spouses have 
a close connection. 
46 The reference in recitals 14 and 21 to a divorce law with which the spouses have a 
close connection could suggest that the concept of ‘habitual residence’ in 
Article 8(a) and (b) of the Rome III Regulation is to be interpreted differently 
from the Brussels IIa Regulation. This is because the spouses will generally not 
have a close connection to the legal system of another State as soon as they move 
there, even if their residence in that State is intended to be of an indefinite 
duration. The position may be different, for example, if this is their State of origin. 
However, when moving to a State that was previously foreign to the spouses – 
especially if the spouses continue to maintain close ties to their State of origin – 
residence could initially be only de facto as it becomes established as habitual 
residence only after a certain period of time has elapsed. 
47 Whether a certain degree of social and family integration has already taken place 
in that State could also be relevant to the question of whether the spouses already 
have a close connection with the law of the State concerned. In any event, in order 
to determine habitual residence under the Brussels IIa Regulation, the Court of 
Justice has proceeded on the basis that habitual residence must be an expression of 
some degree of social and family integration of a person (judgments of the Court 
of Justice of 9 October 2014, C-376/14 PPU, FamRZ, 2015, 107, paragraph 51; of 
22 December 2010, C-289/10 PPU, FamRZ, 2011, 617, paragraph 47; and of 
2 April 2009, C-523/07, FamRZ, 2009, 843, paragraphs 38 and 44). That criterion 
could also be used to define the concept of ‘habitual residence’ in the Rome III 
Regulation (see also NK-BGB/Lugani, 3rd edition, Article 5 of the Rome III 
Regulation, paragraph 54; Rauscher/Helms, EuZPR/EulPR, 4th edition, Article 8 
of the Rome III Regulation, paragraph 20), bearing in mind that, in view of the 
objectives of the Rome III Regulation, as expressed in recitals 14 and 21, a 
significantly greater degree of social and family integration than under the 
Brussels IIa Regulation may be required for a finding of habitual residence under 
the Rome III Regulation. 
III. 
48 [Comments on the obligation to make a reference for a preliminary ruling] […] 
[…] 
Lower courts: 
LINDENBAUMER 
 
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Amtsgericht Tempelhof-Kreuzberg (Local Court, Tempelhof-Kreuzberg, 
Germany), decision of 26 January 2022 – 152 F 8176/21 – 
Kammergericht Berlin (Higher Regional Court, Berlin, Germany), decision of 
27 February 2023 – 3 UF 33/22 – 
[…]