Višje sodišče v Celju; 2018-04-19; Cp 192/2018
Decision by national courts in the field of European Union law — ECLI:SI:VSCE:2018:CP.192.2018
Date: 2018-04-19
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82018SI0419(51)_ENG_SUMJURE
JURE summary
JURE summary
This case, examined by the Višje sodišče v Celju (hereinafter ‘the Court of Appeal’), concerns international jurisdiction in proceedings on parental responsibility, a prohibition on crossing the state border, and a related maintenance claim.
The Court of First Instance held that Slovenian courts lacked jurisdiction and therefore dismissed the claim of the mother (hereinafter ‘the plaintiff’) and rejected her application for an interim order as inadmissible. The plaintiff appealed, alleging factual and legal errors and procedural breaches. She argued, inter alia, that: (i) she had been unable to participate before the French court; (ii) the child’s habitual residence was in Slovenia; (iii) the French proceedings were later in time; and (iv) the Slovenian court should nonetheless have granted urgent provisional protection.
The Court of Appeal held that international jurisdiction is determined by both national and European Union law, with the latter prevailing in this case. Jurisdiction was thus governed by the new Brussels II Regulation (1) and Council Regulation (EC) No 4/2009 (2).
Under Article 8 of the new Brussels II Regulation, jurisdiction in matters of parental responsibility lies with the courts of the Member State of the child’s habitual residence at the time the court is seised. This child had habitually resided in France from birth until the removal to Slovenia and held French nationality. The removal was wrongful, as it occurred without the defendant’s consent while parental responsibility was exercised jointly. Consequently, Article 10 of the new Brussels II Regulation preserved the jurisdiction of the French courts notwithstanding the child’s subsequent presence in Slovenia. In accordance with Article 17, the Slovenian court was obliged of its own motion to declare that it lacked jurisdiction once it established that the French courts were competent.
Jurisdiction over maintenance is governed by Council Regulation (EC) No 4/2009. Given the link to the parental responsibility proceedings and the child’s habitual residence, the Slovenian court correctly found that jurisdiction lay outside Slovenia, and the maintenance claim could not establish Slovenian jurisdiction.
The allegation that the Court of First Instance made incorrect factual findings was unfounded. The court relied on the reasoning of the French judgment. Under Article 26 of the new Brussels II Regulation, Slovenian courts may not review a foreign judgment as to its substance or the manner of service. Objections to the conduct of the French proceedings were therefore irrelevant.
The argument that both the Slovenian and French courts should first have ruled on lis pendens was likewise rejected. Once Article 10 of the new Brussels II Regulation applied (wrongful removal), there was no need to examine the priority of the proceedings; French jurisdiction was determinative.
As regards interim measures under Article 20 of the new Brussels II Regulation, although a Member State may adopt urgent provisional or protective measures concerning persons or property within its territory, such measures cannot override those already adopted by the competent court under the Regulation. As the French court had already imposed provisional measures (including the child’s residence with the defendant and a travel restriction), the Slovenian court correctly rejected the request for an interim as inadmissible.
As none of the plaintiff’s grounds succeeded, the Court of Appeal dismissed the appeal and upheld the order declining jurisdiction and rejecting interim relief.
(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) 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.