European Business Law, the fourth volume in our series, shows how the European authorities simultaneously abolish all restrictions on access to and exercise of economic activities and support the growth of domestic markets, through the harmonization the internal legislation or the enactment of genuinely unified regulations.

European Business Law

The status , capacity of natural persons and the rights in property of the family in general do not fall within the scope of application of Regulation No 1215/2012 (Article 1(2)(a)). This is the case for property (rights in property arising out of a matrimonial relationship, wills and succession) and extra-property (marriage, parenthood, divorce) links, governed by Brussels II bis Regulation , but …

Exclusion of rights of natural persons and of the family

The status , capacity of natural persons and the rights in property of the family in general do not fall within the scope of application of Regulation No 1215/2012 (Article 1(2)(a)). This is the case for property (rights in property arising out of a matrimonial relationship, wills and succession) and extra-property (marriage, parenthood, divorce) links, governed by Brussels II bis Regulation , but not for maintenance obligations, previously governed by Article 5(2) of Regulation No 44/2001, whose provisions were replaced by those in Regulation No 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations . Regulation No 1215/2012 expressly excludes from its scope of application maintenance obligations arising from a family relationship, parentage, marriage or affinity (art. 1(2)(e)).

The concept of “rights in property arising out of a matrimonial relationship” includes not only property arrangements as envisaged by certain national legal systems in the case of marriage but also any proprietary relationships resulting from the matrimonial relationship or the dissolution thereof . Thus, an application for provisional measures to secure the delivery up of a document which might be used as evidence in an action concerning a husband's management of his wife's property, where such management is closely connected with rights in property arising out of a matrimonial relationship , or an application in the course of divorce proceedings for placing assets under seal which appears to fall within the spouses' matrimonial relationship because of its true function , are not governed by Regulation No 1215/2012. The Court of Justice has held that exclusions from the scope of the regulation are exceptions which, like all exceptions, must be strictly interpreted, and therefore an action concerning an application for dissolution of the property relationships arising out a de facto partnership comes within the concept of civil and commercial matters for the purposes of the regulation .

Regulation No 1215/2012 does not apply to issues relative to the status of persons either. Such is the case for disputes concerning the rights in property arising out of the matrimonial relationship in divorce proceedings where they are closely connected with questions of the status of the persons involved  or non-contentious proceedings by which a person who has been declared to be lacking full legal capacity and placed under guardianship applies for authorization to sell his share of a property situated in another Member State, insofar as such proceedings are concerned with the “legal capacity of natural persons” .

Does an application relating to the payment of a maintenance obligation fall within the scope of application of the regulation where it is ancillary to divorce proceedings which, by their very object, fall outside thereof? Before the entry in force of Regulation No 4/2009, the answer must be yes, since ancillary claims come within the scope of the regulation according to the subject-matter with which they are concerned and not according to the subject-matter involved in the principal claim . Accordingly, the regulation applied to maintenance obligations, i.e. maintenance allowance and compensation payment, which were imposed on spoused by legislation or the court for the period after divorce . Also constitutes a maintenance obligation the transfer of ownership in certain property between spouses where it is aimed at making provision, by means of a capital sum, for the maintenance of one of them . 

The question has also been raised whether the recovery of social assistance paid to a divorced spouse comes under the concept of social security - a matter excluded from the regulation - or under that of maintenance obligation. According to the Court of Justice, an action under a right of recourse whereby a public body seeks from a person governed by private law recovery of sums paid by it by way of social assistance to the divorced spouse and the child of that person, falls within the scope of the regulation where the basis and the detailed rules relating to the bringing of that action are governed by the rules of ordinary law in regard to maintenance obligations .

Now, Article 3 of Regulation No 4/2009 provides that “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”.

Case 143/78 De Cavel [1979] ECR 1055, LawLex200900001550JBJ: disputes closely linked to issues relating to the status of persons, which relate to the assets of spouses in the course of proceedings for divorce, do not fall within the application of Regulation No 44/2001.

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, OJ L 338 23 December 2003.

Case 143/78 De Cavel [1979] ECR 1055, LawLex200900001550JBJ.

Case C-220/95 Van den Boogaard v Laumen [1997] ECR I-1147, LawLex200900002152JBJ.

Case C-271/00 Baten [2002] ECR I-10489, LawLex200900001365JBJ.

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, OJ L 7 of 10 January 2009.

Case 25/81 C.H.W. v G.J.H. [1982] ECR 1189, LawLex200900001737JBJ.

Case 120/79 De Cavel [1980] ECR 731, LawLex200900001514JBJ.

Case C-361/18 Ágnes Weil, Judgment of 6 June 2019, LawLex201900000756JBJ.

Case C-386/12 Siegfried János Schneider, Judgment of 3 October 2013, LawLex201300001560JBJ.

European Business Law

319. Exclusion of rights of natural persons and of the family

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319. Exclusion of rights of natural persons and of the family

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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