Višje sodišče v Mariboru; 2010-01-15; III Cp 1836/2009
Decision by national courts in the field of European Union law — ECLI:SI:VSMB:2010:III.CP.1836.2009
Date: 2010-01-15
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82010SI0115(51)_ENG_SUMJURE
JURE summary
JURE summary
This dispute regards custody and protective measures over a child, ‘A’. Her father (hereinafter ‘the plaintiff’) and her mother (hereinafter ‘the defendant’), currently spouses in the course of divorce proceedings, lived in Italy for 25 years. The divorce proceedings were pending before Tribunale di Tivoli (hereinafter ‘the Court of First Instance in Tivoli’), which provisionally granted sole custody of A. to the plaintiff and ordered her to stay temporarily in the children’s home in Rome. However, the defendant left Italy with her daughter and they moved to Slovenia.
The plaintiff claimed the provisional decision of the Court of First Instance in Tivoli to be declared enforceable in Slovenia. The Okrožno sodišče v Mariboru confirmed the enforceability in Slovenia of its order, which was later confirmed by the Vrhovno sodišče Republike Slovenije (hereinafter ‘the Supreme Court‘) and, on the basis of the Supreme Court’s approval, the enforcement proceedings were brought before the Okrajno sodišče v Slovenski Bistrici (‘the Court of First Instance in Slovenska Bistrica’) for the child to be returned to the plaintiff. However, the enforcement proceedings were suspended until the final decision in Italy had been made.
In the meantime, the defendant applied to the Okrožno sodišče v Mariboru (hereinafter ‘the Court of First Instance in Maribor’) for a provisional and protective measure giving her custody of the child and her request was successful. The Court of First Instance in Maribor cited Article 20 of the new Brussels II Regulation (1) in conjunction with Article 13 of the 1980 Hague Convention (2) and argued by change of circumstances and the interests of the child as the return to Italy would be contrary to her welfare. Moreover, the child itself had expressed a wish to stay with her mother. The plaintiff appealed this decision to the same court, but his appeal was dismissed.
The plaintiff further appealed to the Višje sodišče v Mariboru (hereinafter ‘the Court of Appeal’). The Court of Appeal, after examining all the facts and the situation of the case, decided to stay the proceedings and refer to the Court of Justice of the European Union (CJEU) for a preliminary ruling (3) questioning whether:
1) does a Slovenian court have jurisdiction under Article 20 of the new Brussels I Regulation to take protective measures in a situation in which a court of another Member State, having by virtue of that Regulation jurisdiction as to the substance, has already taken a protective measure declared enforceable in Slovenia, and
2) may a Slovenian court, pursuant to national law, take a protective measure under aforementioned Article 20 amending or rendering inoperative a final and enforceable protective measure taken by a court of another Member State which under the new Brussels II Regulation has jurisdiction as to the substance?
The proceedings before the Court of Appeal will continue only after the CJEU provides its interpretation.
(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) Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.
(3) Reference for a preliminary ruling from the Višje sodišče v Mariboru (Republic of Slovenia) lodged on 20 October 2009.