The Court of Justice of the European Union (ECJ or CJEU) ruled Thursday that an Austrian court was not required to hear the divorce proceedings of an Italian man and German woman who had been living in Austria for a little over six months.
The couple’s divorce application was initially dismissed due to lack of jurisdiction. The couple then appealed, and the appeals court also found a lack of jurisdiction for Austrian courts. The dismissal and appeal were based on Brussels II Regulation, which lays out the jurisdiction of the courts in matrimonial matters. The regulation requires that applicants reside in the national territory for at least one year immediately before the application was made.
The couple appealed to the Austrian Supreme Court of Justice. The couple argued that to require nationals of other member states to have resided in Austria for a longer period constitutes discrimination on grounds of nationality, which is prohibited. The court shared the couple’s doubts as to whether the difference in treatment resulting from the regulation is compatible with the principles of non-discrimination on grounds of nationality. Therefore, the court referred the question to the ECJ.
The five-judge panel of the ECJ found Thursday that the regulation was not discriminatory. The panel further found that the principles of non-discrimination on the grounds of nationality, enshrined in Article 18 TFEU, do not preclude the difference in treatment at issue in the current case.
As the court wrote: “A national will, in principle, have closer links with his or her country of origin than a person who is not a national.” According to the court, it was not uncommon for a person to return to their country of origin following a breakup. Because of this, a citizen would have “institutional and legal ties” as well as “linguistic, social, family or property ties” to that country.
Thus, the ECJ found it was not manifestly inappropriate for such a link to have been taken into consideration when drafting Brussels II Regulation and determining the period of actual residence required of the applicant in the territory of the applicable member state.
