# C_2018408EN.01002102.xml

| 12.11.2018 | EN | Official Journal of the European Union | C 408/21 |
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12.11.2018

EN

Official Journal of the European Union

C 408/21

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Judgment of the Court (Sixth Chamber) of 20 September 2018 (request for a preliminary ruling from the Oberster Gerichtshof — Austria) — Alexander Mölk v Valentina Mölk

(Case C-214/17) (1)

((Reference for a preliminary ruling - 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))

(2018/C 408/26)

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Appellant: Alexander Mölk

Respondent: Valentina Mölk

Operative part of the judgment

| 1. | 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 of res 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. |
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1.

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 of res 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.

| 2. | 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. |
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2.

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.

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(1)  OJ C 283, 28.8.2017.

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