Višje sodišče v Celju; 2019-02-21; Cp 67/2019
Decision by national courts in the field of European Union law — ECLI:SI:VSCE:2019:CP.67.2019
Date: 2019-02-21
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82019SI0221(51)_ENG_SUMJURE
JURE summary
JURE summary
This case regards a question of the international jurisdiction of the Slovenian courts, resolved by the Višje sodišče v Celju (hereinafter ‘the Court of Appeal’).
A father domiciled in Slovenia (hereinafter ‘the plaintiff’) filed an action in which he sought the reduction of maintenance obligations and the adjustment of the rights of access to his children, which live with their mother. The children as well as the mother were Austrian natives domiciled in Austria.
The Okrožno sodišče v Celju (hereinafter ‘the Court of First Instance’) invoked Article 8 of the new Brussels II Regulation (1), according to which ‘the courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised’ and declared the lack of its jurisdiction, as it was undoubtedly given that the habitual residence of the children was in Austria.
The plaintiff appealed alleging mainly that the Court of First Instance overlooked Article 12(3)(a) of the new Brussels II Regulation, according to which the jurisdiction should also have the courts of the Members State where ‘one of the holders of parental responsibility is habitually resident’. Moreover, the plaintiff argued that there were two separate pleas and especially the one concerning maintenance obligations shall be assessed pursuant to Article 3(d) of the Council Regulation (EC) No 4/2009 (2), which justifies the jurisdiction of the Slovenian courts.
The Court of Appeal confirmed the correct application of the new Brussels II Regulation. The Court of First Instance did not overlook its Article 12(3)(a), but conversely, that Article was not applicable to the current case. That provision must be read in conjunction with point (b) of the same Article, which requires that the jurisdiction ‘has been accepted expressly or otherwise in an unequivocal manner by all the parties to the proceedings at the time the court is seised and is in the best interests of the child’. Article 3(d) of the Council Regulation (EC) No 4/2009 must be also read in conjunction with points (a) to (c) of the same Article, which justify the jurisdiction of the Austrian courts. Furthermore, the Court of Justice of the European Union has been already addressed with similar issues in the past and its case-law shows that the jurisdiction lies with the courts of habitual residence of the children, that the maintenance obligations and matters related to parental responsibility are closely linked and should be heard by the same court, or that Article 12(3)(a) of the new Brussels II Regulation must be assessed in conjunction with Article 12(3)(b) of the same Regulation.
The Court of Appeal found no grounds to grant the appeal. The appeal was dismissed, and the first instance decision was upheld.
(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) 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.