BGH; 2019-06-05; XII ZB 44/19
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2019:050619BXIIZB44.19.0
Date: 2019-06-05
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82019DE0605(51)_ENG_SUMJURE
JURE summary
JURE summary
A patient residing in a retirement home received social assistance from a public agency (hereinafter ‘the plaintiff’) to cover medical care beyond her financial reach. The plaintiff claimed alimony from the patient's son residing in Austria (hereinafter ‘the defendant’) on the grounds of the maintenance obligations of this son to his parent.
The plaintiff brought the action before the Court of First Instance in Germany, which rejected in its ruling the jurisdiction of the German courts, thus admitting the defendant's argument. The plaintiff appealed and obtained the annulment of the judgment. The defendant challenged the appeal judgment in cassation.
The Bundesgerichtshof (hereinafter ‘the Supreme Court’) stayed the proceedings and raised the following preliminary question:
‘Can a public body which has provided a maintenance creditor with social assistance benefits in accordance with provisions of public law invoke the place of jurisdiction at the place of habitual residence of the maintenance creditor under Article 3(b) of the European Maintenance Regulation (1) in the case where it asserts the maintenance creditor’s maintenance claim under civil law, transferred to it on the basis of the granting of social assistance by way of statutory subrogation, against the maintenance debtor by way of recourse?’ (2)
The Supreme Court stated in its decision that the question of jurisdiction at the creditor's domicile is significant and relevant for admitting or dismissing the action for lack of jurisdiction.
Several legal issues were addressed. It will have to be determined whether the defendant's civil claim under the support obligation retains its civil character when it is transferred to the public body. If so, can the public body use the provisions of the European Maintenance Regulation even though it is not the intended beneficiary of the maintenance obligation?
The characterisation of the debt as a maintenance obligation within the meaning of the Regulation may also be raised, given that the payment was provided for medical care. The Supreme Court leaded towards an autonomous interpretation of the concept of maintenance obligation in line with the case law of the Court of Justice of the European Union (hereinafter ‘CJEU’) and an affirmative answer in the present case in view of the necessity of the treatment.
If the application of the European Maintenance Regulation is established, it will be necessary for the CJEU to determine whether Article 3(b) and (c) of the Regulation are to be regarded as an exception to the rule of jurisdiction at the defendant's domicile in order to protect a claimant in a situation of weakness, or as a rule of general jurisdiction of equal rank intended to favour the enforcement of maintenance claims and avoid unjustified preferential treatment of a debtor of a maintenance claim residing abroad.
(1) 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.
(2) Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 16 July 2019.