AG Stuttgart; 2017-05-03; 27 F 1109/15
Decision by national courts in the field of European Union law — ECLI:DE:AGSTUTT:2017:0503.27F1109.15.09
Date: 2017-05-03
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82017DE0503(52)_ENG_SUMJURE
JURE summary
JURE summary
The dispute concerns international jurisdiction in matrimonial matters, namely the admissibility of an application for divorce brought before a German court with simultaneous lis pendens in France, on which the Amtsgericht Stuttgart (hereinafter ‘the Court of First Instance’) ruled.
The spouses involved married in 2007 before the civil registrar of the registry office in S. The plaintiff is a Moldovan national and the defendant is a German national. The separation of the spouses involved occurred on 13 May 2014, when the defendant moved out of the former joint marital home of the parties in Toulouse in France, where the plaintiff initially remained after the separation. The plaintiff moved out of this apartment on 15 December 2014. She has been living in Stuttgart since then.
On 18 August 2014, the defendant had filed a petition for a divorce by agreement with the District Court in Toulouse. The plaintiff holds the view that the Court of First Instance, and not the District Court in Toulouse, has international jurisdiction and claims that priority divorce proceedings are not pending in Toulouse as the proceedings there were concluded by the decision of the District Court in Toulouse on 17 October 2014 with barring effect for the defendant until October 2016.
The plaintiff, therefore, applied for a divorce of marriage. The defendant, on the other hand, requested that the plaintiff's application for divorce be dismissed or, alternatively, that the proceedings be stayed.
Pursuant to Article 16(1)(a) of the New Brussels II Regulation (1), a court is deemed to have been seised at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the plaintiff has not subsequently failed to take the steps he was required to take to have service effected on the defendant.
The Court of First Instance took the view that proceedings within the meaning of Article 19(1) of the New Brussels II Regulation were pending before the District Court of Toulouse, France, between the same parties, that the subject-matter of those proceedings was identical to that of the present proceedings and that the District Court of Toulouse was seised first. Furthermore, the Court of First Instance assumed that the decision of the District Court of Toulouse of 17 October 2014 had clarified the international jurisdiction of this court.
The plaintiff's application was dismissed as inadmissible on the grounds that it was otherwise pending. The Court of First Instance has no international jurisdiction in accordance with the priority principle pursuant to Article 19(3) of the New Brussels II Regulation.
(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.