Several months following the entry into force of the Twin Regulations on property regimes of international couples, the CJEU rendered its judgment in Weil (C-361/18). The case concerned international jurisdiction for property relations of a non-registered couple. Since the Twin Regulations contain rules on international jurisdiction, applicable law and recognition and enforcement of judgments for property regimes arising out of marriage or registered partnership, Weil remained outside of their ambit of application. With this judgment, the CJEU clarified whether the lack of unified private international law rules for the de facto unions may be mitigated by applying the Brussels I regime for determining international jurisdiction for property relations of non-registered couples.

The parties to the case are Ms. Weil and Mr. Gulácsi, unregistered partners whose relationship lasted from 2002 to 2006. Upon the application of Ms. Weil, the Municipal Court, Szekszárd, Hungary ordered Mr. Gulácsi to pay Ms Weil the sum of approximately EUR 2 060 based on their property relationship. After the unsuccessful attempt of enforcing the judgment in Hungary, Ms. Weil lodged an application, on 22 November 2017, before the Szekszárd District Court Hungary for issuing the certificate referred to in Art. 53 of Regulation 1215/2012 (Brussels I bis Regulation), with the aim of enforcing that judgment in England. In the course of that proceedings, the Hungarian court sought clarification from the CJEU on whether the case at issue falls into the material scope of application of the Brussels I bis Regulation.

In order for a particular case to fall into the ambit of the Brussels I bis Regulation, requirements for all four aspects of the Brussels I bis Regulation scope of application have to be met, namely material, personal, territorial and temporal. The CJEU established that according to Art. 66 of the Brussels I bis Regulation (No. 1215/2002), the respective case falls outside of the Brussels I bis Regulation scope ratione temporis since the proceedings in which the judgment was rendered were commenced prior to 10 January 2015. It was not, therefore, necessary for the CJEU to conduct analysis on whether the case falls into the Brussels I bis material scope of application. The CJEU then proceeded to analyse whether it may be considered to fall into the material scope of application of the Brussels I bis predecessor, i.e. Brussels I Regulation (No. 44/2001), which was the instrument in force at the time the proceedings were commenced in Hungary. Pursuant to Art. 1(2)(a) of the Brussels I Regulation, rights in property arising out of a matrimonial relationship are excluded from the scope of that Regulation. With the enactment of the Brussels I bis Regulation, this exclusion was extended to cover relationship which, under applicable law, have comparable effects to marriage (Art. 1(2)(a)). In the light of these amendments, the CJEU concluded that the case at issue falls into the ambit of the Brussels I Regulation. Otherwise, the extension of the exclusion in the Brussels I bis Regulation would be deprived of significance.

Had Weil fallen into the temporal scope of application of the Brussels I bis Regulation, the conclusion on whether it is covered by the material ambit of application might have been different. The provision relevant for determining ratione materiae scope would be Art. 1(2)(a) of the Brussels I bis which excludes from its scope property arising out of relationships deemed by the law applicable to have comparable effects to marriage. Therefore, the national court would have to, as a first step, determine the law applicable to property relations of non-registered partnerships. Unlike the conflict of law rules for marital property regimes and property consequences of registered partnerships, the conflict of laws rules governing property relations of de facto unions are not unified on the EU level. As a consequence, each MS court applies its own national conflict of law rules. Finally, the court would be required to assess whether, under the provisions of applicable law, non-registered partnerships produce effects comparable to marriage.

The absence of the autonomous concept of a relationship which, in terms of property, has comparable effects to marriage in the Brussels I bis Regulation generates legal uncertainty for non-registered partnerships. However, considering the discrepancy of rules existing in EU MS concerning property regimes of various family formations (see Family Property and Succession in EU Member States, national reports), it is understandable why, at this point, the European legislator opted for characterisation according to the applicable law instead of an autonomous one.

di Danijela Vrbljanac

2 April 2020