Course

PRIVATE INTERNATIONAL LAW (PRI3018)

Examinaton

Academic year Date Time Duration Phase

2019-2020 27 January 2020 9 am 3 hours BA

SUGGESTED MODEL ANSWER

NB: this model answer is meant to provide for an indication of the correct
answer. It does not exclude that other elements that are not explicitly
mentioned below, can be taken into consideration as well.

QUESTION 1 (9 Points)

Timo de Wit, a Dutch national, and Marie Duchenne, a French national resident in Lyon, are co-
owners of a house situated in Torrevieja, Spain. Timo, who is the owner of apartment No 10 in that
house, has his home address at this location, where he permanently resides since he retired. Marie
Duchenne, who is the owner of apartment No 20, lives in Lyon and uses her apartment, which was
designated for residential purposes, for tourist purposes by regularly letting it out to holiday
guests.
Timo has not been successful, despite long exchange emails, in persuading Marie that using the
apartment for tourist purposes, contrary to its designated use and arbitrarily in the absence of
consent of the other co-owners, interferes with his rights of co-ownership. He therefore seeks to
bring an action before the District Court of Torrevieja to prevent Marie from using the apartment
for rental purposes. As you can imagine, Marie is not of the same view and, among other things, is
unwilling to defend her case before the Spanish court.

a) Is the Spanish court, in your opinion, the one with international jurisdiction to hear this
case?

b) Before the competent court, Marie argues that the tenancy agreements between herself as
the owner and the holiday guests are governed by French law (as stipulated in one of the
contractual clauses) so that French law is applicable. In your opinion, is French law
applicable to Timo’s claim?

Answer

The case should be characterized as a dispute on the exercise of ownership of an immovable

property by the defendant.

a) [4,5 points] Jurisdiction

 Determination scopes of Brussels I Regulation
- Material scope: art. 1, it is a civil matter between two private individuals
- Temporal scope: Article 66 and Article 81. The Regulation is applicable to procedures
instituted on or after 10 January 2015. The temporal scope is met if we assume that the
facts recently took place.
- Geographic scope: The elements of the case are situated in EU States bound by the
Regulation.

Brussels I Regulation is applicable to the facts of this case if Timo filed the case on or after
10 Jan 2015.

- Which jurisdiction rule of this Regulation? Art 24 (1)

- Art 24 is the highest provision on the hierarchy of jurisdiction rules and assigns exclusive
jurisdiction to one MS only. As the rules in Art. 24 are exceptions to the main rules of the
Regulation (in particular Art 4), they must be applied restrictively.

- The proceedings have as their object the extent and conditions of the exercise of a right in rem
(i.e. property) on an immovable property.

- This is not a tenancy and the exception for short-term tenancies is not applicable.

- Outcome for the case: Exclusive jurisdiction of place where immovable property is located =
Spanish courts.

b) [4,5 points] Applicable law:

Marie argues that the tenancy agreements between herself as the owner and the holiday guests
are governed by French law (as stipulated in one of the contractual clauses) so that French law is
applicable. This argument is not relevant because Timo’s claim is characterized as a proprietary
claim and not a contractual claim.

The answer could be broken down in the following steps:

1) Is Rome I applicable?

No, this Regulation is not applicable because the case falls outside the material scope of this
Regulation. The claim is not based on a contractual obligation between the parties to the dispute.

2) How to characterize the claim?

In line with the argumentation used above (which confirms the interpretative alignment based on
the autonomous interpretation of the Regulations – as explained in Lecture 4), the case concerns a
proprietary claim.

The relationship between Timo and Marie is not a contractual one but relates to the scope of the
proprietary statute of goods. It is not governed by uniform EU rules – the conflict rules of the State
where the case is to be filed, ie Spain, will apply. Students are not expected to know domestic
private international law rules – just a very predominant application of the lex rei sitae for
immovable property (Lecture 5).
How would the Spanish competent court characterize the dispute? Three methods of
characterization are possible (lege fori, lege causae and autonomous characterization). The latter is
relevant when treaties and regulations are applicable, so not in the present case.

QUESTION 2
Section A (9 points)

Proposition:
‘The doctrine of F.C. von Savigny remains pivotal to EU Private International Law’

Explain whether you agree or disagree with this proposition. Please include references to the main
ideas proposed by this eminent author in the evolution of Private International Law and to three
legal instruments that support your position.

[9 points] Schematic answer

• PIL is the area of law that comes into play whenever a court is faced with a question
involving private parties that contains a foreign element, or a foreign connection. The mere
presence of such a foreign element in a legal matter raises a number of questions and it is
the function of private international law to provide an answer to these questions and to
ensure just solutions.
• Von Savigny’s contribution to PIL is very significant because it left behind the so-called
statutists’ theory that had been applied since the Middle Ages. The statutists looked at
international cases from the perspective of their domestic law and were mainly interested
in assessing whether such legal norms can be applied to cases involving foreign elements.
• In contrast with the statutists, von Savigny did not enquire whether a legal norm was
applicable to a case with foreign elements, but rather sought the seat of the legal
relationship (Sitz der Rechtsverhältnisse). He posed the question of the applicability of
domestic or foreign law and thereby approached the applicable law question not from the
perspective of a given legal system, but from the perspective of the legal relationship. In
consequence, von Savigny did not base his approach on the superiority of the forum’s legal
system but rather on the equality of forum and foreign law. His approach was in search of
the proper law, defined as the one with the closest connection with the relationship under
review.
• Von Savigny proposed a completely new approach (the Copernican revolution) and
highlighted the importance of comity (respect) among nations which are interconnected.
• Modern PIL in EU is dominated by EU Regulations and HCCH Conventions. All these
international instruments are multilateral and, as such, they follow the methodological
principle formulated by von Savigny, that is, the seat of the legal relationship to connect
the situation with the applicable law.
• Here examples to be added (with reference to the relevant provision(s) where this
approach is followed) – could be any of the international instruments with rules on
applicable law – Rome I, Rome II, Rome III, the 1996 Child Protection Convention, the
2007 Maintenance Protocol, etc.
  Students should therefore agree with the statement. They could also refer to the
prevalence of party autonomy or to statutist-oriented devices to argue that von Savigny’s
influence has gradually decreased.
 Credit will be given to a thought out argumentation and a conclusion.

Section B (3 points)

As you have noticed over the past weeks, Latin expressions are commonly used in Private
International Law.

Explain the meaning of the following Latin terms and illustrate with an example:

i) Lex rei sitae

(1,5 points) The term ‘lex rei sitae’ (Latin for the law of the place where the good is located) is
generally used to determine proprietary aspects of goods, that is property and other rights in rem
vested on those goods. More suited for immovable than for movable goods + example or
illustration. This concept refer to applicable law, not to jurisdiction.

ii) Favor divortii

(1,5 points) The term ‘favor divortii’ (Latin for in favour of divorce) refers, in the context of PIL, to
jurisdiction grounds or connecting factors that enable alternative courts to have jurisdiction or
alternative applicable laws. Such rules are designed to minimize the effects of substantive norms
that would have restrictive approaches to divorce. Example/illustration from Brussels IIbis or Rome
III.

QUESTION 3 (9 points)

Romina, a Romanian citizen and Giancarlo, an Italian citizen were married in Iași, Romania, on 2
September 2010, and a child Pietro was born out of their relationship on 23 June 2015. Pietro was
born in Verona, Italy, where the couple established their common habitual residence shortly after
their wedding.
The relationship between Romina and Giancarlo has broken up and, since July 2019, Romina is
back in Iași, Romania, where she hopes to definitively settle. Their son stayed with Giancarlo in
Italy.
By an action before the Court of First Instance of Iași on 13 October 2019, Romina filed a petition
for divorce in respect of Giancarlo, claiming that the parties’ marriage should be dissolved. As
accessory claims, Romina requests a court authorization to use the surname borne prior to her
marriage as she has been using Giancarlo’s surname since their marriage. As to Pietro, she
requests a court order establishing that parental responsibility in respect of their minor child should
be exercised jointly and that Pietro should reside with her in Romania. Finally, she requests that
Giancarlo should be required to pay maintenance and the costs of proceedings.
 a) Would you agree with the decision of the Romanian court that it lacks international
jurisdiction over the heads of claim concerning parental responsibility and the requirement
to pay maintenance for Pietro?

b) Which law governs the requested change of surname by Romina?

c) Suppose the Romanian court dissolves the parties’ marriage even though, under the
applicable law, the divorce petition can only be granted in case of a previously granted
legal separation. Would a mistake in the application of the law prevent the recognition of
this divorce order in Italy?

a) [3 points] Jurisdiction: two distinct claims:

a.1) Parental responsibility

Determination scopes of Brussels IIbis Regulation

- Material scope: Art. 1 (1)(b.); YES.
- Geographic scope: The facts of the case are situated in MS that apply the Regulation.
- Temporal scope: Art. 64 and 72; The regulation is applicable to procedures instituted on
or after 1 March 2005. The temporal scope is met as proceedings are instituted in
October 2019.

Brussels IIbis Regulation is applicable to the facts of this case

- Which jurisdiction rule?

Pursuant to Art. 8 (2) Br. IIbis, Article 8(1) is subject to the articles 9 (not relevant in casu), 10
(not relevant in casu) and 12. Art 12 may be applicable IF:

1) The Romanian court has international jurisdiction for the divorce. Check all the alternative
grounds in Art. 3 of the Regulation and the answer is that the court does not have
international jurisdiction YET because Romina has only been back three months in Romania
before she files the proceedings. As a result, the first condition is not met.
2) There are other conditions as well that come into play if the condition of art. 12 (1) would
have been fulfilled. They are met only if Giancarlo has accepted expressly or otherwise in
an unequivocal manner the jurisdiction of the Romanian court AND it is in the superior
interests of the child that the case is decided in Romania.

Art 8 : general jurisdiction: habitual residence of the child = Italy. The Romanian court has no
international jurisdiction.

Specific answer to the question: yes, you agree with the conclusion that the Romanian courts do
not have international jurisdiction based on the Regulation. Furthermore, they cannot invoke
domestic rules on international jurisdiction because another court in a MS has jurisdiction (Italian
courts, see Art. 14)

a.2) Maintenance

Determination scopes of Maintenance Regulation

- Material scope: Art. 1(1); YES.
 - Geographic scope: The facts of the case are situated in MS that apply the Regulation.
- Temporal scope: Arts. 75 and 76; The regulation is applicable to procedures instituted
on or after 18 June 2011. The temporal scope is met as proceedings are instituted in
2019.

The Maintenance Regulation is applicable to the facts of this case.

Which jurisdiction rule?

Since arts 4 and 5 are not relevant in casu, Art 3 as the general rule with alternative jurisdiction
factors: based on the facts we know, none is met in the current case. The Romanian court has no
international jurisdiction.

Arts 6 and 7 cannot be applied as it is clear that the Italian courts have international jurisdiction
(both the maintenance creditor (ie the individual to whom maintenance is owed = the child, even
though the claim is filed on his behalf by his mother because he is a minor) and maintenance
debtor have hab res in Italy.

Specific answer to the question: yes, you agree with the conclusion that the Romanian courts do
not have international jurisdiction based on the Regulation. Furthermore, they cannot invoke
domestic rules on international jurisdiction because another court in a MS has jurisdiction (Italian
courts, see Art. 6)

b) [3 points] Applicable law to the name issue:

Determination scope Rome III Regulation

- Material scope: Article 1: divorce and legal separation. However, Art 1(2) excludes the
“name of the spouses” even though the issue arises as a preliminary or incidental
matter in divorce proceedings
- No need to check further : Rome III is not applicable.

This issue is not governed by uniform EU rules – the conflict rules of the State where the case is
filed, i.e. Romania, will apply. You were not expected to know domestic private international law
rules.

c) [3 points] Recognition in Italy of a Romanian divorce order

Determination scope Brussels IIbis Regulation

- Material scope: Article 1(1)a
- Geographic scope: The facts of the case are situated in MS that apply the Regulation
and the judgment is rendered in a EU State.
- Temporal scope: Art. 64 and 72; The regulation is applicable to procedures instituted on
or after 1 March 2005. The temporal scope is met as proceedings are instituted in 2019.

Recognition will happen without any procedure being required (Art. 21). If Giancarlo or a third
party wishes to challenge the recognition, they can only invoke the grounds for non-recognition in
Art. 22. A mistake in the application of the law is not as such sufficient to contest the recognition –
it does not feature among the grounds for non-recognition. According to Art. 26, no review as to
the substance is possible.

The answer is therefore negative – the material error is not a ground for non-recognition.