Opinion of the Advocate General — ECLI:EU:C:2020:132
Date: 2020-02-27
Language of the case: German
Subject matter: Justice and home affairs;Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Germany

Anonymised version 
Translation  C-41/19 — 1 
Case C-41/19 
Request for a preliminary ruling 
Date lodged: 
23 January 2019 
Referring court: 
Amtsgericht Köln (Germany) 
Date of the decision to refer: 
14 January 2019 
Applicant: 
FX 
Defendant: 
GZ, represented for legal purposes by her mother 
  
[...] 
Amtsgericht Köln 
(District Court, Cologne) 
Family Court 
Order 
In the family matter 
of Mr FX, [...] Kall, 
applicant, 
[...] 
EN 
REQUEST FOR A PRELIMINARY RULING OF 14. 1. 2019 — CASE C-41/19 
 
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v 
the child GZ, represented for legal purposes by her mother, [...] Krakow / Poland, 
defendant, 
the Amtsgericht Köln 
on 14 January 2019 
[...] made the following order: [Or. 2]  
I. 
The proceedings are stayed. 
II. 
The following questions are referred to the Court of Justice of the European Union 
for a preliminary ruling pursuant to the second paragraph of Article 267 of the 
Treaty on the Functioning of the European Union (TFEU): 
1. Does an application opposing enforcement made pursuant to 
Paragraph 767 of the German Code of Civil Procedure (ZPO) 
against a foreign maintenance order constitute a matter relating to 
maintenance within the meaning 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 (the European 
Maintenance Regulation)? 
2. If not, does an application opposing enforcement made pursuant to 
Paragraph 767 ZPO against a foreign maintenance order 
constitute proceedings concerned with the enforcement of 
judgments within the meaning of Article 24(5) of Regulation (EU) 
No 1215/2012 of the European Parliament and of the Council of 
12 December 2012 on jurisdiction and the recognition and 
enforcement of judgments in civil and commercial matters (the 
Brussels Ia Regulation)? 
Grounds: 
I. 
The subject matter of the judicial proceedings instituted in Germany before the 
District Court (Family Court) in Cologne is an application opposing enforcement 
made pursuant to Paragraph 767 ZPO by the applicant, residing in Germany, 
against the defendant, residing in Poland. [Or. 3] 
FX 
 
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The applicant is the father of the minor defendant and was ordered by a decision 
of the Krakow District Court of 26 May 2009 [...] to pay monthly maintenance of 
PLN (Polish Złote) 500.00 for his daughter from 1 September 2008 as well as 
PLN 430.00 per month retroactively for the period from 19 June 2008 to 
31 August 2008. 
As the dependent child sought the enforcement of that Polish decision in 
Germany, she requested, by application notice of 20 July 2016 lodged with the 
referring court, the recognition and declaration of enforceability of the Polish 
maintenance decision in Germany in accordance with the European Maintenance 
Regulation. The referring court thereupon, by order of 27 July 2016 [...] in 
accordance with Articles 23 et seq. and 75(2) of the European Maintenance 
Regulation, in conjunction with the first sentence of Paragraph 40(1) of the 
German Law on the Recovery of Maintenance in Relations with Foreign States 
(Auslandsunterhaltsgesetz (Foreign Maintenance Law) — AUG), decreed that an 
order for enforcement was to be issued in respect of the aforementioned decision 
of the Krakow District Court. 
The defendant is now pursuing the enforcement of the Polish decision in 
conjunction with the order of the referring court against the applicant in Germany. 
This is opposed by the applicant’s application made by notice of 5 April 2018 that 
the enforcement of the order of the District Court, Cologne — Family Court — of 
27 July 2016 be declared inadmissible. 
As grounds for his application, the applicant argues that the defendant’s 
maintenance claim underlying the Polish decision had been settled by payment. 
He states that he himself made maintenance payments totalling PLN 6 640.05 in 
the years 2008 up to and including 2010, and state benefits of PLN 500.00 per 
month had also been paid to the defendant through the Polish maintenance fund 
since December 2010. The maintenance fund in Poland was in contact with him 
and he referred the claim there back to that maintenance fund within the scope of 
his economic capacity. The applicant is of the opinion that the defendant’s 
maintenance claim has in any event been predominantly settled thereby.  
II. 
[Or. 4] Pursuant to the second paragraph of Article 267 TFEU, a preliminary 
ruling of the Court of Justice of the European Union has to be sought on the 
ground that the decision of the court seised depends on the response to the 
questions referred to the Court of Justice concerning the scope of the European 
Maintenance Regulation and the Brussels Ia Regulation. 
Question 1: 
If the application opposing enforcement made by the applicant constitutes a matter 
relating to maintenance for the purposes of Article 1 of the European Maintenance 
Regulation, then no international jurisdiction of the court seised results from the 
Regulation, since the conditions of Article 3 of the European Maintenance 
REQUEST FOR A PRELIMINARY RULING OF 14. 1. 2019 — CASE C-41/19 
 
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Regulation are evidently not satisfied in any alternative, as the parties involved 
have not made a choice of court agreement within the meaning of Article 4 of the 
European Maintenance Regulation and such an agreement would furthermore be 
irrelevant due to Article 4(3) of the European Maintenance Regulation. By 
contrast, the courts in Poland, where the order was made, would, pursuant to 
Article 3(a) and (b) of the European Maintenance Regulation, be directly called 
upon to deal with the applicant’s defence of fulfilment. 
The court seised considers the application opposing enforcement made by the 
applicant to be a matter relating to maintenance within the meaning of the 
European Maintenance Regulation, but considers itself precluded from declaring 
of its own motion that it has no jurisdiction pursuant to Article 10 of the European 
Maintenance Regulation because, unlike modification applications (Article 8 of 
the European Maintenance Regulation), applications opposing enforcement are 
not expressly mentioned either in the European Maintenance Regulation or in the 
Brussels Ia Regulation and the classification thereof is therefore to be determined 
through interpretation of those legal instruments. 
The German legislature is evidently of the opinion that the courts of the Member 
State in which the enforcement takes place have international jurisdiction in 
respect of applications opposing enforcement. It thus specified in Paragraph 66 
AUG that the debtor may assert objections against the claim itself in proceedings 
under Paragraph 120(1) of the Law on Procedure in Family Matters and Voluntary 
Jurisdiction (FamFG) in conjunction with Paragraph 767 ZPO if a foreign order 
has been declared enforceable under the European Maintenance Regulation. The 
reasoning regarding the Federal Government’s draft Law implementing 
Regulation (EC) No 4/2009 and reorganising existing implementing provisions in 
the field of international maintenance procedural law of 27 February 2011 [...] 
states the following, inter alia, with regard to Paragraph 66 AUG: [Or. 5]  
‘If German courts have international jurisdiction, the draft also allows 
enforcement-opposing proceedings against foreign orders. In the area of the 
European Union, international jurisdiction in this respect is still determined by 
Article 22(5) of the Brussels I Regulation. The Maintenance Regulation does not 
stand in isolation alongside the Brussels I Regulation, but amends the latter, in 
that it replaces the provisions. Supplementary reference is therefore to be made to 
the Brussels I Regulation. 
The provision allows the debtor to raise objections, which are to be asserted under 
German law with enforcement-opposing proceedings, against a foreign order 
which is either already enforceable without enforcement proceedings or on the 
basis of which enforcement is allowed. This does not involve an inadmissible 
review of the foreign decision in the main proceedings, since these objections 
could not even have been taken into consideration by the judge in the original 
court. The preclusion does not merely cover foreign decisions, but 
comprehensively covers all foreign orders which are enforceable domestically, if 
necessary following enforcement proceedings. This guarantees that, even with 
FX 
 
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court settlements and public instruments, the prohibition of substantive review is 
observed. An action opposing enforcement, set out in the eighth book of the Code 
of Civil Procedure, which also applies in family dispute matters by virtue of 
Paragraph 120 FamFG, moreover constitutes enforcement proceedings unaffected 
by the Maintenance Regulation. Finally, Paragraph 66 takes account of the need 
for equal treatment of domestic and foreign orders.’ 
The view that applications opposing enforcement are not matters relating to 
maintenance within the meaning of the European Maintenance Regulation is in 
line with the prevailing opinion in Germany [...]. It is essentially argued that, with 
an application opposing enforcement, the legal protection objective was directed 
solely against the enforcement itself, whereas the continuance of the original order 
remained untouched, and measures against the enforcement itself were not 
covered by the European Maintenance Regulation, but were to be asserted in the 
State of enforcement. [Or. 6] 
However, there is a different view that the application opposing enforcement is a 
matter relating to maintenance within the meaning of the European Maintenance 
Regulation because the objections raised by way of that application, such as, for 
instance, fulfilment or subrogation, are ultimately directed against the order as 
such and not merely against the manner of the enforcement which is to be 
assessed purely under enforcement law [...]. It is also pointed out that the 
application opposing enforcement under German procedural law functionally 
corresponds to a modification application aimed at reducing the maintenance 
claim ordered, which application, according to Article 8 of the European 
Maintenance Regulation, is subject to the jurisdictional principles of the 
Regulation. 
The Court is inclined towards the last-mentioned opinion, because this alone is 
compatible with the objective of the European Maintenance Regulation, namely 
guaranteeing the protection and jurisdictionally privileged status of the 
maintenance creditor (cf. recital 9). If the maintenance creditor were to have to 
defend herself/himself/itself against an application opposing enforcement, 
concerning substantive objections to the claim ordered, in the State of 
enforcement, then this protection would precisely not always be guaranteed if the 
applicant claims that the objection to the maintenance claim ordered arose only 
after the order had acquired legal effect. The maintenance creditor who, in 
accordance with the jurisdictional principles of the European Maintenance 
Regulation, has secured a maintenance order in the Member State of his habitual 
residence (in this case, Poland) would therefore — contrary to those principles — 
be required to defend that order in a different Member State (in this case, 
Germany) against attacks by the initially unsuccessful maintenance debtor. In 
addition, the courts of the State in which the claim was originally ordered are 
much better placed to assess substantive objections to the claim than are the courts 
of a different Member State in which the order is only to be enforced. 
Question 2: 
REQUEST FOR A PRELIMINARY RULING OF 14. 1. 2019 — CASE C-41/19 
 
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If the application opposing enforcement made by the applicant does not constitute 
a matter relating to maintenance within the meaning of the European Maintenance 
Regulation, this raises the further question of whether proceedings concerned with 
the enforcement of judgments within the meaning of Article 24(5) [Or. 7] of the 
Brussels Ia Regulation are then involved. 
An answer to the question referred is not apparent from the decisions of the Court 
of Justice of 4 July 1985 – 220/84 (AS Autoteile Service GmbH v Malhé) and of 
13 October 2011 – C-139/10 (Prism Investments BV v Jaap Anne van den Meer). 
In Case 220/84, one question referred to the Court of Justice for a ruling regarding 
the interpretation of Article 16(5) of the precursor to the Brussels I Regulation, the 
Convention of 27 September 1968 on jurisdiction and the enforcement of 
judgments in civil and commercial matters (the Brussels Convention) was, inter 
alia, whether applications to oppose enforcement within the meaning of 
Paragraph 767 ZPO came within the jurisdiction provision contained in 
Article 16(5) of the Convention. 
Article 16(5) of the Convention, which essentially corresponds in terms of content 
to Article 24(5) of the Brussels Ia Regulation, provides that ‘in proceedings 
concerned with the enforcement of judgments, the courts of the Contracting State 
in which the judgment has been or is to be enforced’ are to have exclusive 
jurisdiction, regardless of domicile. 
In reply to this question, the Court of Justice held that proceedings such as those 
provided for under Paragraph 767 ZPO came, as such, within the jurisdiction 
provision contained in Article 16(5) of the Brussels Convention by reason of their 
close link to the enforcement procedure. However, that finding did not resolve the 
question of what objections a party may raise in such proceedings without going 
beyond the limits of Article 16(5). 
In Case C-139/10, the Court of Justice was required to provide observations on the 
question of whether Article 45 of Regulation No 44/2001 precludes the court with 
which an appeal is lodged under Article 43 or Article 44 of that regulation from 
refusing or revoking the declaration of enforceability on a ground, other than one 
of those specified in Articles 34 and 35 of that regulation, which has been 
advanced against enforcement of the judgment declared enforceable and which 
arose after that judgment had been delivered, such as the ground that there has 
been compliance with that judgment[.] [Or. 8] 
In this regard, the Court of Justice stated that compliance with a judicial decision 
did not deprive that decision of its enforceable nature, or lead to its being given, at 
the time of its enforcement in another Member State, legal effects that it would 
not have in the Member State of origin. Such a ground could, by contrast, be 
brought before the court or tribunal responsible for enforcement in the Member 
State in which enforcement is sought. Once that judgment has been incorporated 
into the legal order of the Member State in which enforcement is sought, national 
FX 
 
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legislation of that Member State relating to enforcement applies in the same way 
as to judgments delivered by national courts. 
Both decisions of the Court of Justice concerned general civil and commercial 
matters and were delivered before the entry into force of the European 
Maintenance Regulation and the Brussels Ia Regulation, which, according to its 
Article 1(2)(e), is not intended to cover matters relating to maintenance. The two 
decisions therefore also show no consideration for the particular jurisdictional 
principles in matters relating to maintenance already set out above in relation to 
Question 1. It therefore appears doubtful whether they are transferable to matters 
relating to maintenance, which would mean that, on the basis of Article 24(5) of 
the Brussels Ia Regulation, the maintenance debtor would be allowed to set out, 
before a court in the State of his habitual residence, substantive objections to the 
maintenance claim ordered in a different Member State. 
[...]