BGH, decision of 25 May 2022 - XII ZB 404/20- (referral to the ECJ on the interpretation of Art. 3 I lit. a Brussels IIa Regulation)
The question referred to the European Court of Justice for a preliminary ruling is whether the waiting period of one year (six months) provided for in Article 3(1)(a), fifth and sixth indents, of the Brussels IIa Regulation only begins to run for the applicant when he establishes his habitual residence in the Member State of the court seised, or whether it is sufficient if, at the start of the relevant waiting period, the applicant merely has a simple residence in the State of the court seised and his residence only subsequently becomes a habitual residence in the period up to the filing of the application.
The facts of the case:
1 A. Facts
2 The proceedings concern the divorce of the marriage between the applicant, born in 1959 (hereinafter: husband), who holds German citizenship, and the wife, born in 1969 (hereinafter: wife), who is a Polish citizen. The parties married in 2000 in K. – J. (Poland), near Warsaw. Twin sons were born of their marriage in 2003.
3 After living in Germany for several years, the parties moved to Poland in the mid-2000s to a family home they had built in K.-J., where the wife still lives today. They are also joint owners of an apartment in Warsaw, which was rented out until September 2012 and was then available to them.
4 The husband was employed as a senior manager at a global pharmaceutical company. Since April 2010, he had been seconded to the Netherlands by his employer and its Dutch sister company as managing director of the so-called Central Europe region, which includes Poland and the Netherlands, but not Germany. His work involved a significant amount of business travel and working from home. His employer provided him with a company apartment in Aerdenhout, Netherlands, which he retained – even after the closure of his employer's Dutch offices in the summer of 2012 – until the expiration of his secondment agreement at the end of 2013. In his birthplace, H., Germany, the husband has his own apartment in a house occupied by his parents, which was also used by the couple and their children during visits to Germany.
5 The husband filed for divorce with the H. District Court on October 27, 2013. He maintained that his habitual residence had been in H. since at least mid-2012. He claimed to have left the marital home in K.-J. in June 2012. Since June 2012, he had deepened his relationship with his partner in H. and regularly cared for his ailing parents. His stays in Poland had been limited to visits with his two sons, which were always related to work.
6 The wife challenged the lack of international jurisdiction of German courts, claiming that her husband only left the family home in K.-J. after the Easter holidays in early April 2013 and subsequently lived in their jointly owned apartment in Warsaw. She stated that during the second semester of the 2012/2013 school year, the two sons were picked up from after-school care at the school in Warsaw on a daily basis by both parents. Between April and November 2013, the husband resided almost exclusively in the Netherlands or Poland.
7 On November 19, 2013, the wife filed for divorce in Poland at the District Court in Warsaw (Sąd Okręgowy w Warszawie).
8 The local court held that the German courts lacked international jurisdiction and dismissed the application as inadmissible. The higher regional court dismissed the husband's appeal. The husband has filed a further appeal on points of law against this decision, seeking a referral of the case back to the local court and a substantive review of his divorce petition.
For the reasons:
9 B. For submission to the European Court of Justice
10 The success of the husband's appeal on points of law depends on the interpretation of Article 3(1)(a) of Council Regulation (EC) No 2201/2003 of 27 November 2003 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility, and repealing Regulation (EC) No 1347/2000 (hereinafter: the Brussels IIa Regulation). Before a decision can be reached, the proceedings must therefore be stayed and a preliminary ruling obtained from the Court of Justice of the European Union pursuant to Article 267(1)(a) and (3) TFEU.
I.
11 The Court of Appeal denied the international jurisdiction of the German courts because, on April 27, 2013 – six months before filing his divorce petition with the Local Court of H. – the husband's habitual residence in Germany could not (yet) be established, and therefore the husband could not invoke the plaintiff's jurisdiction pursuant to Article 3(1)(a), sixth indent, of the Brussels IIa Regulation. The Court of Appeal stated the following in this regard:
12 The husband, regardless of his professional activity, which involved working from home and numerous business trips, originally had his habitual residence in Poland because he had settled there permanently with his wife and children, his closest relatives. The separation of the spouses alone did not constitute a change in the husband's habitual residence, as a mere change of residence within Poland would not have altered his actual center of life there. Therefore, the specific date of the separation is only indirectly relevant to the question of the husband's habitual residence. The husband presented, for the first time since mid-2012, tangible factual circumstances that would suggest a shift in his center of life from Poland to Germany. These included, in addition to his parents' particular need for assistance and the "deepening" of his relationship with his partner, the closure of his employer's business premises in the Netherlands. However, the husband's own statements already contradict the notion that he had already shifted his habitual residence to Germany between June 2012 and April 2013. In a questionnaire submitted to the tax authorities by his tax advisor in February 2013, he stated that his center of vital interests remained in Poland throughout 2012 and had not been relocated from there. It is implausible for the husband to now claim that this information regarding the second half of 2012 was an oversight. The husband's assertion that he only traveled to Poland for visitation with his children since October 2012 is inconsistent with his travel diary and the documented periods of his stay in Poland. However, the husband's particularly close relationship with his two sons is readily credible and contradicts the claim that he abandoned his center of vital interests in Poland prematurely. According to the school's certificate in Warsaw, the children were picked up alternately by both parents during the second half of the 2012/2013 school year until the summer holidays. In contrast, the husband's statements regarding his time spent in Germany between June 2012 and April 2013 do not indicate any shift in his center of life, in particular no increased need for care for his parents, nor any deepening of his relationship with his new partner. The statements of the witnesses named by the husband regarding his stay in Germany are partly unhelpful and otherwise unreliable. Even considering the evidence presented, at least for the period up to June 29, 2013, when the school year ended for the two sons of the parties involved and the summer holidays began in the Masovian Voivodeship (Województwo mazowiecki), it can at best be concluded that the husband was simply staying in Germany, but not that he had already established a permanent relocation of his center of life to Germany. This is all the more true because the husband had been able to use the parties' apartment in Warsaw for his own purposes since October 2012.
II.
13 The decision on the appeal on points of law depends on the answer to the preliminary question concerning the interpretation of Article 3(1)(a), fifth and sixth indents, of the Brussels IIa Regulation.
14 1. The legal starting points of the Higher Regional Court are initially correct.
15 a) The Higher Regional Court correctly held that the international jurisdiction of German courts in the present case could arise from Article 3(1)(a), sixth indent, of the Brussels IIa Regulation. According to this provision, the courts of the Member State in whose territory the applicant has his or her habitual residence have jurisdiction to decide on divorce proceedings if he or she has resided there for at least six months immediately before filing the application and is a national of that Member State. The European Court of Justice has already ruled that the privilege based on nationality, which allows an applicant to bring an action before the courts of his or her home Member State after a period of residence of only six months, whereas otherwise, pursuant to Article 3(1)(a), the courts of the Member State in question have jurisdiction, is not applicable in this case. The fact that the fifth indent of the Brussels IIa Regulation allows a divorce petition to be filed only after a period of residence of one year does not violate the prohibition of discrimination enshrined in Article 18 TFEU (see ECJ judgment of 10 February 2022 – C-522/20 – NJW 2022, 1363, paragraphs 40 et seq.).
16 b) The Higher Regional Court also correctly assumed that the concept of „habitual residence“ must be interpreted autonomously and uniformly in accordance with the provisions of the Regulation (see ECJ judgments of 25 November 2021 – C-289/20 – NJW 2021, 3771 para. 38 et seq. and of 28 June 2018 – C-512/17 – FamRZ 2018, 1426 para. 40 = BeckRS 2018, 13329).
17 It has since been clarified in the case law of the European Court of Justice that even a spouse who lives in two or more Member States can only have their "habitual" residence in one of these Member States (see ECJ judgment of 25 November 2021 – C-289/20 – NJW 2021, 3771, para. 51). Determining habitual residence is essentially a question of fact, which the national court must assess on the basis of all the factual circumstances of the individual case (see ECJ judgments of 25 November 2021 – C-289/20 – NJW 2021, 3771, para. 52 and of 22 December 2010 – C-497/10 PPU [Mercredi] – FamRZ 2011, 617, para. 47 = BeckRS 2011, 80085). Habitual residence is generally characterized by two elements: firstly, subjectively, by the individual's intention to establish the habitual center of their life interests in a particular place (animus manendi); and secondly, objectively, by a sufficiently long-term presence in the territory of the Member State concerned (see ECJ judgment of 25 November 2021 – C-289/20 – NJW 2021, 3771, paras. 57 et seq.). When determining the center of life of an adult spouse, their more diverse environment – compared to that of children – with a considerably broader range of professional, private, familial, socio-cultural, and financial activities and interests, must be taken into account. According to the case law of the European Court of Justice, it should be assumed in particular that, in times of marital crisis, special importance must be attached to the subjective element, namely the outwardly manifested will of one spouse to separate from their partner and to settle in a different Member State than the Member State of their former shared residence as part of a new life plan, when determining their habitual residence (see ECJ judgment of 25 November 2021 – C-289/20 – NJW 2021, 3771, paragraphs 55 et seq.).
18 c) The Higher Regional Court's view that the waiting period of six months (one year) provided for in Article 3(1)(a), fifth and sixth indents, of the Brussels IIa Regulation must, according to the clear wording of the provision, be fulfilled immediately before the filing of the divorce petition, is also not objectionable on legal grounds. This should also have been clarified in the case law of the European Court of Justice in the meantime (see ECJ judgment of 25 November 2021 – C-289/20 – NJW 2021, 3771, para. 59).
19 2. The Higher Regional Court evidently proceeded on the assumption that the husband was habitually resident in Germany at least at the time the divorce petition was filed on November 27, 2013. This assessment—favorable to the husband—must be assumed for the purposes of the appeal on points of law. In contrast, the Higher Regional Court is of the opinion that, when considered in its entirety, its findings cannot justify the conclusion that the husband had already had his habitual residence in Germany six months prior to filing his divorce petition—that is, on April 27, 2013. This assessment by the lower court reveals no legal errors and is therefore binding on the Federal Court of Justice.
20 (a) The jurisdiction rules of the Brussels IIa Regulation do not contain any express provisions on how the national courts of the Member States are to proceed when establishing the factual circumstances relevant for determining international jurisdiction. Therefore, the respective procedural rules of national law are decisive, taking into account the principles of equivalence and effectiveness. National procedural law determines whether the court must ascertain the facts relevant to jurisdiction ex officio or whether they must be presented by the parties themselves (see already Schlosser, Report on the Convention of 9 October 1978 on the Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland to the Brussels Convention and on the Protocol concerning the interpretation of that Convention by the Court of Justice, OJ EC 1979 No. C 59, p. 71, 81 et seq., para. 22). If these procedural rules – as is the case with German law – are governed by the principle of party presentation, the court makes its decision according to the principles of burden of proof. Article 3 of the Brussels IIa Regulation does not directly address the allocation of the burden of proof. However, it is consistent with the usual rules on the burden of proof in European civil procedure that the person seeking to invoke a particular jurisdiction must present and prove the facts establishing jurisdiction (see, in this sense, ECJ judgment of 20 January 2005 – Case C-464/01 [Gruber/BayWa AG] – NJW 2005, 653, para. 46, concerning the burden of proof for consumer status under Articles 13 to 15 of the Brussels Convention of 27 November 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters).
21 b) The term "habitual residence" is an indeterminate legal term. When subsuming the established facts under indeterminate legal terms, the court of appeal must, according to German procedural law, respect the trial court's discretionary power of assessment. The court may only regularly review whether the trial judge correctly grasped the legal concept, whether he established the facts without procedural errors, whether he overlooked or failed to fully assess essential circumstances of the case, and whether his evaluation violates the laws of logic or rules of experience (see Federal Court of Justice judgments of October 7, 2015 – VIII ZR 247/14 – NJW 2015, 3780 para. 25 and of March 12, 2003 – VIII ZR 197/02 – NJW-RR 2003, 981 et seq. with further references; see also Senate decision of July 9, 2014 – XII ZB 661/12 – NJW 2014, 2785 paras. 39 et seq.). If the trial judge acts within this framework, his findings and assessments are binding on the court of appeal (§ 74 III 4 FamFG in conjunction with § 559 II ZPO). Measured against this standard of review, the Higher Regional Court's assessment, made under the responsibility of the trial judge, that the husband did not (yet) have his habitual residence in Germany on April 27, 2013, is not objectionable on legal grounds.
22 (aa) As a starting point, the appeal on points of law clearly does not dispute that, notwithstanding his frequent business trips abroad and his residences in various countries (Poland, Germany, the Netherlands), the husband's habitual residence was in Poland at least until the separation of the spouses, which the husband dates to June 2012. He lived in Poland with his wife and children, his closest relatives, in a family home. The Higher Regional Court was therefore correct in considering whether, and if so, at what point in time, the factual circumstances of the present case, taken as a whole, justify the assumption that the husband had shifted the center of his life interests from Poland to Germany.
23 (bb) The quantitative analysis of the husband's days of stay in the various countries does not yield a clear result for the period between July 2012 and June 2013. The Higher Regional Court determined the duration of his stays based on the husband's own statements as follows:
24
|
First half of 2012 |
Second half of 2012 |
First half of 2013 |
Second half of 2013 | |
|
Poland |
70 days |
41 days |
66 days |
56 days |
|
Germany |
42 days |
71.5 days |
70.5 days |
108 days |
|
Netherlands and other states |
70 days |
71.5 days |
44.5 days |
20 days |
25 While it is true that the husband spent 70 days in Poland and only 42 days in Germany in the first half of 2012 for private and professional reasons, and that this ratio practically reversed in the second half of 2012, it cannot be established that he spent significantly more time in Germany than in Poland in the first half of 2013. The Higher Regional Court itself assumes that the husband had his habitual residence in Germany in the second half of 2013.
26 (cc) The Higher Regional Court therefore made a legally sound determination of the qualitative focus and primarily considered the husband's private and family interests. In doing so, the Higher Regional Court took into account that, between 2012 and 2013, the husband maintained strong family and personal ties to his parents in need of care and his new partner in Germany, as well as to his two sons in Poland.
27 While maintaining a close personal bond with the two children living in Poland does not in itself preclude the assumption that the husband may have shifted the center of his life interests to Germany after the separation, this is because a spouse who, in the midst of a marital crisis, decides to leave the couple's former habitual residence in order to settle in another Member State and file for divorce there, is generally free to maintain a number of social and family ties within the territory of the Member State where the spouses previously resided together (see ECJ judgment of 25 November 2021 – C-289/20 – NJW 2021, 3771, para. 55).
28 The Higher Regional Court considered the husband's familial connection to his sons to be decisive in determining the center of his life interests because the husband could not prove that his contact with his children remaining in Poland was limited to typical visitation. Rather, the Higher Regional Court found that the husband was significantly involved in his sons' after-school care until the summer holidays of 2013. In this regard, the Higher Regional Court, acting as the court of first instance, was justified in concluding from the certificate from the W. School in Warsaw dated March 8, 2014, submitted by the wife, that the husband was not noticeably less involved than the wife when picking up the children from school. Finally, the Higher Regional Court was also entitled to consider that the husband – regardless of the disputed issue between the parties regarding how often he was still present at the former marital home in K.-J. between July 2012 and April 2013 – had been held up – at least since October 2012, when the condominium in Warsaw became available for residential purposes and he was therefore no longer dependent on hotel stays to meet his housing needs in Poland.
29 cc) Contrary to the arguments raised in the appeal on points of law, the Higher Regional Court did not overlook or incompletely assess any essential circumstances of the case in its evaluation.
30 (1) There is no legal objection to the Higher Regional Court's decision not to attach decisive importance to the registration circumstances, according to which the husband had been registered in Germany with his sole residence in H. since 18 March 2011 and in Poland only for the period from 9 November 2010 to 17 October 2012 for temporary residence in K.-J. (zameldowania na pobyt czasowy). As the appeal on points of law correctly recognizes, registration records are only of limited significance and can at best provide an indication of the actual center of life (see also Senate decisions of March 15, 1995 – XII ARZ 37/94 – FamRZ 1995, 1135 and of February 7, 1990 – XII ARZ 1/90 – NJW-RR 1990, 506(507)). However, the Higher Regional Court was able to deny that registration records had any indicative value regarding habitual residence, given that the husband himself had declared to the tax authorities that his center of life had been in Poland throughout 2012 and had not been moved from there. There is no legal objection to the Higher Regional Court's decision to attach particular importance to this statement by the husband in a questionnaire from his tax advisor when assessing the evidence, because it was made at a time (in February 2013) when it still seemed impossible that its content could have been influenced by its potential significance for these proceedings.
31 (2) The bank statements submitted by the husband for the period from October 2012 to October 2013 are also insufficient to fundamentally call into question the Higher Regional Court's assessment. Even though some of these statements are redacted, they can (only) demonstrate that the husband also covered living expenses during his time in Germany. However, the Higher Regional Court itself had already concluded, based on its findings regarding the periods of residence, that the husband had stayed in Germany for extended periods in 2012 and 2013.
32 (3) The appellant's argument that the Higher Regional Court failed to critically assess the statements of the Polish witnesses heard through mutual legal assistance, despite the husband's pointing out inconsistencies and deficiencies in these statements in his grounds of appeal, is also unfounded. The Higher Regional Court's decision—logically, from its perspective—was not based on the content of the Polish witnesses' statements, because, in particular, the date when the husband (finally) left the former marital home in K.-J. was irrelevant to its assessment.
33 (dd) If, after considering all the above, the Higher Regional Court, under the prevailing circumstances, did not recognize a break in the husband's focus of life interests as early as June 2012 (separation of the spouses), but only in July 2013 (beginning of the summer holidays in the Masovian Voivodeship), given the husband's continued caregiving responsibilities for the parties' two school-age children, this assessment may not be necessarily the only one, considering that the husband's strongest linguistic and socio-cultural ties were likely to his German homeland. However, it is certainly justifiable and therefore falls within the bounds of a permissible factual assessment by the lower court, which is binding on the Federal Court of Justice.
34 3. The decision on the appeal on points of law therefore depends on whether, for the commencement of the waiting period under Article 3(1)(a), fifth and sixth indents, of the Brussels IIa Regulation, mere residence in the state of jurisdiction is sufficient, or whether the applicant – as the Higher Regional Court believes – must have established habitual residence in the state of jurisdiction six months (one year) before filing the divorce petition. If the Higher Regional Court's view were correct, the husband's appeal on points of law would have to be dismissed because he had not yet established habitual residence in Germany on April 27, 2013. Otherwise, his appeal on points of law would be successful because, according to the findings of the Higher Regional Court, it can be assumed that the husband could fulfill the six-month waiting period at least by including periods of his simple residence in Germany (regarding the possibility of simultaneous residence in several places, see ECJ judgment of 25 November 2021 – C-289/20 – NJW 2021, 3771, para. 55).
35 a) There has been disagreement for some time as to how Article 3(1)(a), fifth and sixth indents, of the Brussels IIa Regulation should be interpreted in this respect.
36 It is a widely held view in German-language literature that the applicant's habitual residence in the court state must have existed not only at the time of application, but already at the beginning of the relevant waiting period of six months or one year. This view, also shared by the Court of Appeal, relies primarily on a teleological interpretation of the norm and emphasizes that the applicant must first demonstrate a sufficiently close connection to the state of jurisdiction by establishing habitual residence there for a certain period of time in order to preclude manipulation of jurisdiction to the detriment of the respondent (see Rauscher/Rauscher EuZPR/EuIPR 4th ed. Art. 3 Brussels IIa Regulation para. 43; Staudinger/Spellenberg BGB [2015] Brussels IIa Regulation Art. 3 para. 41; Hausmann, IntEuFamR, A para. 80; Zöller/Geimer ZPO 34th ed. EuEheVO Art. 3 para. 7; NK-BGB/Gruber EheVO 2003 Art. 3 paras. 29 f.; MüKoFamFG/Gottwald Brussels IIa Regulation Art. 3 para. 20; Rademacher ZEuP 2021, 167(170 ff.); Hau FamRZ 2000, 1333 (1334)). In contrast, other voices in the literature want to count the applicant's mere residence during the period of their social integration into the judicial state towards the waiting period. They argue that a "habitual residence" of six months (one year) cannot be required according to the clear wording of Article 3(1)(a), fifth and sixth indents, of the Brussels IIa Regulation (see Dilger in Geimer/Schütze, Int Rechtsverkehr VO No. 2201/2003, Article 3, para. 29 et seq.; Bahrenfuss/von Milczewski, FamFG, 3rd ed., § 98, para. 11; Niklas, Die Europäische Kompetenzverordnung in Ehe- und Kindschaftsverfahren [2003], pp. 81 et seq.; Toscano, Ehescheidungen mit grenzüberschreitendem Bezug [2011], pp. 125, 127 et seq.; Pabst, Entscheidzuständigkeit und Betrachtung ausländischer Rechtshitten in Ehesachen mit Europabezug, para. 365 et seq.; and likely also Andrae, IntFamR, § 2, para. 27 et seq.).
37 A similar controversy arose among English judges before the United Kingdom's withdrawal from the European Union as to whether the applicant must already have a "habitual residence" in the court state at the start of the relevant waiting period (see Moor J in Pierburg v Pierburg [2019] EWFC 24 para. 53 et seq.; Bennett J in Munro v Munro [2007] EWHC 3315 (Fam) para. 48 et seq.) or whether it is sufficient if the applicant has established a "residence" in the court state at the start of the waiting period, provided that this has solidified into a "habitual residence" by the time the application is filed (see Munby J in Marinos v Marinos EWHC 2047 (Fam) para. 45 et seq.; P. Jackson J in V v V [2011] EWHC 1190 (Fam) para. 47).
38 b) The issue in dispute has not yet been settled in the case law of the European Court of Justice. In case C-289/20, the Court, in connection with the application of Article 3(1)(a), sixth indent, of the Brussels IIa Regulation, stated (ECJ judgment of 25 November 2021 – C-289/20 – NJW 2021, 3771, para. 59) that the applicant in those proceedings had fulfilled the requirement of having resided in the territory of that Member State for at least six months immediately before applying for dissolution of the marriage („…satisfaisait à la condition de résidence sur le territoire de cet État membre d'au moins six mois immédiatement avant l'introduction de sa requête en dissolution du lien matrimonial…“). Although the Court refers to a „six-month stay“ and not expressly to a „six-month habitual residence“, the Senate finds it doubtful that the Court intended to take a position on the question of whether a simple or a habitual residence must exist at the beginning of the six-month waiting period, because the circumstances of the case at hand obviously did not make it seem necessary to address this issue.
39 c) The Senate tends – in agreement with the Higher Regional Court – to require the applicant to have a habitual residence in the state of jurisdiction in order to trigger the waiting period of six months (one year).
40 (aa) The Senate is aware that the pure wording of the provision could point in a different direction. Article 3(1)(a), fifth and sixth indents, of the Brussels IIa Regulation stipulate that the courts of the Member State in whose territory the applicant has his or her habitual residence have jurisdiction if he or she has been "reside" (and not "habitually resident") there for at least one year (six months) immediately before the application was made. Contrary to the respondent's view, the Senate cannot interpret the English wording "...the applicant is habitually resident if he or she resided there for at least a year (six months) immediately before the application was made" as meaningless.„
41 nor the French „…la résidence habituelle du demandeur s'il ya résidé depuis au moins une année immédiatement avant l'introduction de la demande“
42 The language version of the regulation suggests a clearer link between the waiting period and the requirement of habitual residence.
43 In this context, for comparison, reference should also be made to the Hague Convention of 1 June 1970 on the Recognition of Divorces and Legal Separations (published at www.hcch.net), which is in force in some Member States of the European Union and is linguistically unambiguous in this respect. According to Article 2, paragraph 2, letter a of the 1970 Hague Divorce Convention, divorces and legal separations are recognized in any other Contracting State if the applicant had his or her habitual residence in the State of origin at the time the proceedings were initiated there and "the habitual residence had continued for not less than one year immediately prior to the initiation of the proceedings." The English ("...such habitual residence had continued for not less than one year immediately prior to the institution of proceedings.") and French ("...cette résidence habituelle avait duré au moins une année immédiatement avant la date de la demande.") versions of the Convention are formulated with similar clarity.
44 (bb) However, the Senate does not assume that the European legislator intended to convey any particular message by deciding not to use a similarly unambiguous formulation in the editorial version of Article 3(1)(a), fifth and sixth indents, of the Brussels IIa Regulation as that chosen in Article 2(2) of the 1970 Hague Divorce Convention. It can possibly be explained by the desire for greater readability of the provision. The Borrás Report states that the forum actoris was to be permitted in the Regulation „on the basis of habitual residence, albeit subject to additional conditions“ (see Borrás Explanatory Report on the Convention pursuant to Article K.3 of the Treaty on European Union on jurisdiction and the recognition and enforcement of judgments in matrimonial matters, OJ EC 1998 No. C 221/38, No. 32). Neither the German nor the English version of the Borrás Report clarifies whether these additional conditions relating to habitual residence consist precisely of the requirement that the applicant's habitual residence must have been established for the entire waiting period of six months (one year) prior to filing the divorce petition. However, the French version states, „…d'autre part, pour pouvoir introduire sa demande, le demandeur doit avoir etabli sa residence habituelle dans l'Etat en question depuis six mois.“
45 as well as the Spanish
„…por other part, para que pueda presenter su solicitud es preciso que haya establecido en dicho Estado su habitual residence por un period de seis meses.“
46 The language version of the Borrás report contains unambiguous formulations and thus clear indications for the interpretation preferred by the Senate, namely that, according to Article 3(1)(a), fifth and sixth indents, of the Brussels IIa Regulation, habitual residence in the state of jurisdiction is required for the entire waiting period.
47 (cc) Finally, a narrow interpretation of the provision is supported by the fact that the forum actoris, accessible via Article 3(1)(a), fifth and sixth indents, of the Brussels IIa Regulation, constitutes a special privilege for the applicant and creates a particular need for protection on the part of the respondent, which in most cases has no connection to the state where the applicant has jurisdiction. It is therefore also reasonable to give special consideration, in terms of timing, to the applicant's connection to the state of the court that justifies access to the forum actoris.
48 (dd) The requirement that the applicant must have established habitual residence in the state of jurisdiction for the entire six-month (one-year) waiting period is not contradicted by the general consideration that criteria establishing jurisdiction should, in principle, be easy to determine in order to make the application of the law predictable for the parties and to ensure uniform application of the Regulation in all Member States. It must be admitted that the ex-post assessment of whether the applicant's residence in the place of jurisdiction was already a "habitual" residence at the beginning of the six-month (one-year) waiting period involves considerable factual uncertainties and difficulties. However, these problems are expected to arise only in a very small number of cases and in highly atypical factual situations – such as the present case. In the usual cases where one spouse leaves their former place of residence during a marital crisis and moves to another Member State, this constitutes a return to the place where the spouse lived before the marriage or to the Member State of which the spouse is a national. Particularly in such cases, a move following a marital crisis can be considered to establish a new habitual residence for the spouse almost immediately or at least within a very short time, so that practically the entire period of residence of the spouse in the other Member State will generally also constitute a habitual residence (see Opinion of Advocate General Campos Sánchez-Bordona of 8 July 2021 – C-289/20, BeckRS 2021, 17415, paragraph 60).