The German applicant requested to get divorced before German courts. Her husband had the Maltese citizenship. Both parties were living in Malta. The applicant had claimed the international jurisdiction of German courts because Art. 3 (1) (b) Brussels IIbis violated Art. 21 (2) of the Charter of Fundamental Rights of the European Union.
The court denied the international jurisdiction of German courts. It held that Art. 3 (1) (b) Brussels IIbis didn’t Art. 21 (2) of the Charter of Fundamental Rights of the European Union. According to Art. 3 (1) (a) first indent Brussels IIbis Maltese courts were internationally competent. It further stated that it wasn’t required to establish a forum necessitatis given the fact that Malta established the possibility of divorce in 2011. This according to the court was also valid in view of the fact that the the possibility of divorce didn’t exist in Malta at the point of time the application for divorce had been made. The court also stated that in view of these considerations, a preliminary request pursuant to Art 267 (3) TFEU was not necessary.
The wording of Art. 3 (1) Brussels IIbis is clear. The court has correctly applied it to the present case. It doesn’t seem necessary to establish a forum necessitatis because the effective legal protection can be guaranteed for the present case. The refusal of international jurisdiction before German courts in the present case doesn’t lead to a refusal of general legal protection regarding the parties’ divorce in the EU because Maltese courts were internationally competent (habitual residence, Art. 3 (1) (a) first indent Brussels IIbis). The judgment is correct.