Opinion of the Advocate General — ECLI:EU:C:2018:297
Date: 2018-05-02
Language of the case: German
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary — Judgment of the Court (Sixth Chamber), 20 September 2018 1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Scope — Hague Protocol on the law applicable to maintenance obligations — Included (Art. 267 TFEU; Hague Protocol of 23 November 2007) 2. Judicial cooperation in civil matters — Jurisdiction, applicable law, recognition and enforcement of decisions in matters relating to maintenance obligations — Hague Protocol on the law applicable to maintenance obligations — Special rules favouring certain creditors — Creditor having seised the competent authority of the State where the debtor has his habitual residence — Application of the law of the forum — Whether that law may also be applied to a subsequent application lodged by the debtor seeking a reduction in the amount of maintenance — Precluded (Hague Protocol of 23 November 2007, Art. 4(3)) 3. Judicial cooperation in civil matters — Jurisdiction, applicable law, recognition and enforcement of decisions in matters relating to maintenance obligations — Hague Protocol on the law applicable to maintenance obligations — Special rules favouring certain creditors — Creditor having seised the competent authority of the State where the debtor has his habitual residence — Concept of ‘seising’ the competent authority — Appearance entered by the creditor in proceedings initiated by the debtor seeking a reduction in the amount of maintenance — Not included (Hague Protocol of 23 November 2007, Art. 4(3)) 1. See the text of the decision. (see para. 23) 2. 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. By providing that the law of the forum, rather than the law of the State of the habitual residence of the creditor, may be applied first of all, the Hague Protocol provides that creditor with the possibility to choose the former law indirectly, a choice resulting from the creditor lodging his application with the competent authority of the State where the debtor has his habitual residence. That possibility pursues the objective of protecting the creditor, regarded as the weaker party in his dealings with the debtor, by enabling that creditor, de facto, to choose the law applicable to his application. In those circumstances, where the proceedings in which that application was submitted have been closed by a decision which has acquired the force of res judicata, it does not follow from Article 4(3) of the Hague Protocol that the effects of that choice should be extended to new proceedings brought not by the creditor but by the debtor. Moreover, a rule derogating from the rule set out in Article 3 of the Hague Protocol must be interpreted strictly, without going beyond the situation expressly envisaged thereby. Those considerations are borne out by the explanatory report on the Hague Protocol drawn up by Mr Andrea Bonomi (text adopted by the Twenty-First Session of the Hague Conference on Private International Law). As was noted by Mr Bonomi in paragraph 67 of that report, the envisaged derogation from the standard connection to the law of the habitual residence of the creditor may be justified if the creditor himself decides to bring the action in the State where the debtor has his habitual residence, whereas it appears excessive in a situation where the action was initiated in that State by the debtor, in particular with regard to a request for alteration of a decision concerning maintenance obligations. A comparison of Article 4(3) of the Hague Protocol with the provisions of that protocol enabling the parties to choose the law applicable to the maintenance obligation by common agreement, namely Articles 7 and 8 thereof, also supports that analysis. Accordingly, it must be held that Article 4(3) of the Hague Protocol covers only a situation where the creditor indirectly chooses the law of the forum in the context of proceedings which he has initiated before the competent authority of the State where the debtor has his habitual residence and does not extend to subsequent proceedings initiated after the decision in the initial proceedings has acquired the force of res judicata. (see paras 31-36, 42, 46, operative part 1) 3. 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. That provision applies only on two conditions, namely that the authority seised is the authority of the State where the debtor has his habitual residence and that it is the creditor who seises that authority, meaning that the action must thus be initiated by the creditor. In the case of an action initiated by the debtor before the authority of the State where he is habitually resident, the creditor entering an appearance may admittedly result in that authority having jurisdiction, as provided for in Article 5 of Regulation No 4/2009. However, it cannot be inferred from that acceptance of jurisdiction that the creditor has also ‘seised’ the authority of the State where the debtor has his habitual residence for the purposes of Article 4(3) of the Hague Protocol. (see paras 49-51, 53, operative part 2)