Audiencia Provincial de A Coruña, Sección 5ª, auto de 25/09/2008 115/2008
Decision by national courts in the field of European Union law — ECLI:ES:APC:2008:571A
Date: 2008-09-25
Subject matter: Lugano Convention
Origin: Spain

82008ES0925(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The Juzgado de Primera Instancia of A Coruña (ES) recognised a separation order of the Tribunal de première instance of Geneva (CH) and issued a declaration of enforceabilty in respect thereof. In the order, the respondent was required to pay maintenance for the common daughter of the spouses, which was payable to the mother. The defendant lodged an appeal to the Audiencia Provincial of A Coruña (ES) and argued that Article 46 Lugano Convention was breached because it was a foreign default judgment and the applicant had not produced a certificate of service of the action brought in Switzerland.
The Audiencia Provincial of A Coruña (ES) grants the action. According to the jurisprudence of the ECJ, judgments that concern maintenance, including those issued in separation orders or divorce decrees, fall within the scope of application of the Lugano Convention. Its application is not affected by competition with other conventions in relation to particular matters, such as the 23rd Hague Convention of 2 October 1973 on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations. The recognition and declaration of enforceability of the Swiss judgment must be refused pursuant to Article 46 Lugano Convention because it was issued as a default judgment, and because it was not substantiated that the action was served on the defendant.