Višje sodišče v Ljubljani; 2019-03-14; IV Cp 495/2019
Decision by national courts in the field of European Union law — ECLI:SI:VSLJ:2019:IV.CP.495.2019
Date: 2019-03-14
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82019SI0314(51)_ENG_SUMJURE
JURE summary
JURE summary
This case concerns a question of international jurisdiction related to an action regarding the determination of the maintenance and right of access to a child resolved by the Višje sodišče v Ljubljani (hereinafter ‘the Court of Appeal’).
The mother of the child domiciled in Slovenia (hereinafter ‘the plaintiff’) brought a case before the Okrožno sodišče v Ljubljani (hereinafter ‘the Court of First Instance’). The Court of First Instance invoked Article 19(2) of the new Brussels II Regulation (1), which states: ‘[w]here proceedings relating to parental responsibility relating to the same child and involving the same cause of action are brought before courts of different Member States, the court second seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established’. There were other proceedings in Frankfurt am Main, Germany, which fully met the conditions laid down by the cited article, and therefore the Court of First Instance stayed the proceedings.
The plaintiff appealed the first instance decision, alleging an erroneous application of Article 19 of the new Brussels II Regulation. The plaintiff argued that the child was living with her in Slovenia, and that the father of the child was of Finnish nationality, not German, and that the transfer of the case to Slovenia, pursuant to Article 15 of the same Regulation, would be in the best interests of the child. Moreover, the plaintiff claimed that Slovenian legislation (namely Article 73 of ZMZPP (2)) provides a basis for exclusive Slovenian jurisdiction.
The Court of Appeal recalled that Article 73 of ZMZPP applies only when both parties are Slovenian citizens domiciled in Slovenia. In the present case, the new Brussels II Regulation must therefore be applied, as the Court of First Instance correctly held. The Court of Appeal considered it to be undisputable that the proceedings in Germany had commenced earlier. In such circumstances, Article 19(2) of the new Brussels II Regulation provides for an obligatory stay of the Slovenian proceedings. The transfer of the case to a court better placed to hear the case, pursuant to Article 15 of the Regulation, is unreasonable since Article 15 provides this option only for courts that have jurisdiction, and it was a German court that had jurisdiction in this case.
The Court of Appeal dismissed the appeal and upheld the first instance decision.
(1) Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000.
(2) Zakon o mednarodnem zasebnem pravu in postopku (Private International Law and Procedure Act).