January 16th, 2019
Published on December 20th, 2018 | by efi kloyeri0
Summary: C-214/17 regarding the law applicable to maintenance obligations
Key-Words: «Judicial cooperation in civil matters-Hague Protocol on the law applicable to maintenance obligations — Article 4(3) — Application for maintenance lodged by the maintenance creditor with the competent authority of the State where the debtor has his habitual residence — Decision which has acquired the force of res judicata — Subsequent application, lodged with the same authority by the debtor, seeking a reduction in the amount of maintenance awarded — Appearance entered by the creditor — Determination of the applicable law»
Α) The facts of the main proceedings
Mr Mölk is habitually resident in Austria, while his daughter, Ms Mölk, is habitually resident in Italy. By virtue of an order of the Bezirksgericht Innsbruck (District Court, Innsbruck, Austria) of 10 October 2014, Mr Mölk is obliged to pay maintenance to Ms Mölk on a monthly basis. That order was made, on the basis of Austrian law, following an application for maintenance lodged by the creditor, Ms Mölk, with that court pursuant to Article 4(3) of the Hague Protocol. In 2015 Mr Mölk applied to the Bezirksgericht Innsbruck (District Court, Innsbruck) for a reduction in the amount of maintenance as from 1 February 2015, on the ground that his net income had decreased. Ms Mölk contended that that application should be dismissed. The above mentioned Court dismissed Mr Mölk’s application as did later the Landesgericht Innsbruck (Regional Court, Innsbruck, Austria) in 2016. Mr Mölk brought an appeal before the referring court requesting a ruling on the maintenance claim on the basis of Italian law.
Β) The questions referred
Under those circumstances, the Oberster Gerichtshof (Supreme Court, Austria) referred the following questions to the Court of Justice:
(1) Is Article 4(3) read in conjunction with Article 3 of [the Hague Protocol] to be interpreted as meaning that a maintenance debtor’s application, on the basis of a change in his income, for a reduction in the amount of maintenance awarded by a decision that has become final is governed by the law of the State of the creditor’s habitual residence even if the amount of maintenance previously payable was determined by the court, on application by the creditor pursuant to Article 4(3) of [the Hague Protocol], according to the law of the State where the debtor has his habitual residence, which has not changed?
(2) If the answer to Question 1 is in the affirmative:
Is Article 4(3) of [the Hague Protocol] to be interpreted as meaning that a creditor also “seises” the competent authority of the State where the debtor has his habitual residence by entering an appearance, within the meaning of Article 5 of [Regulation No 4/2009], and contesting the substance of the matter in proceedings initiated by the debtor with the competent authority?’
C) Legal Context
Article 4(3) of the Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations
D) Consideration of the questions refereed
On a proper construction of Article 4(3) of the Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations, approved on behalf of the European Community by Council Decision 2009/941/EC of 30 November 2009, the result of a situation such as that at issue in the main proceedings, where the maintenance to be paid was set by a decision, which has acquired the force ofres judicata, in response to an application by the creditor and, pursuant to Article 4(3) of that protocol, on the basis of the law of the forum designated under that provision, is not that that law governs a subsequent application for a reduction in the amount of maintenance lodged by the debtor against the creditor with the courts of the State where that debtor is habitually resident.
Article 4(3) of the Hague Protocol of 23 November 2007 must be interpreted as meaning that a creditor does not ‘seise’, for the purposes of that article, the competent authority of the State where the debtor has his habitual residence when that creditor, in the context of proceedings initiated by the debtor before that authority, enters an appearance, for the purposes of Article 5 of 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, contending that the application should be dismissed on the merits.
Eftihia- Angie Klogkiri
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