Višje sodišče v Ljubljani; 2008-10-02; IV Cp 3608/2008
Decision by national courts in the field of European Union law — ECLI:SI:VSLJ:2008:IV.CP.3608.2008
Date: 2008-10-02
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82008SI1002(52)_ENG_SUMJURE
JURE summary
JURE summary
This case, examined by the Višje sodišče v Ljubljani (hereinafter ‘the Court of Appeal’), concerned the legality of staying Slovenian proceedings in matrimonial matters and matters of parental responsibility.
The Court of First Instance stayed the Slovenian proceedings relating to divorce, custody, child maintenance and rights of access, pending a final decision by the Austrian court in divorce proceedings between the same parties. It considered that the Austrian court must first reach a final decision on the divorce filed there by the defendant. The plaintiff appealed, arguing that there was no basis for a stay because the proceedings were not interdependent.
The Court of Appeal noted that this was a case with an international element: the defendant is an Austrian national residing in Austria, the plaintiff is a Slovenian national residing in Slovenia, and their three children – Austrian and American nationals – have been permanently resident in Slovenia. Consequently, jurisdiction had to be assessed under the Brussels I Regulation (1) and the new Brussels II Regulation (2).
The Court of First Instance correctly held that Slovenian courts had jurisdiction under Articles 3 and 8 of the new Brussels II Regulation (matrimonial matters and parental responsibility) and under Article 5 of the Brussels I Regulation (maintenance). However, it misapplied Article 19 of the new Brussels II Regulation, which provides that ‘where proceedings relating to divorce, legal separation or marriage annulment between the same parties are brought before courts of different Member States, the court second seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established’. Although the stay of the divorce proceedings was correct, no proceedings concerning parental responsibility (custody and access) or maintenance had been commenced before the Austrian court. Those matters should therefore have continued in Slovenia. There was no legal impediment to proceeding with the regulation of relations between parents and children, even if the parents were not yet divorced; the essential point is simply that they cannot agree on those issues.
Accordingly, the Court of Appeal upheld the appeal. It set aside the order insofar as it stayed the proceedings on parental responsibility and maintenance, remitting the case for continuation before the Court of First Instance.
(1) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) 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.