1. By order of 15 May 1995, received at the Court on 15 September 1995,
the Circuit Court, County of Dublin, referred to the Court for a preliminary
ruling under the Protocol of 3 June 1971 on the interpretation by the
Court of Justice of the Convention of 27 September 1968 on Jurisdiction
and the Enforcement of Judgments in Civil and Commercial Matters
(OJ 1978 L 304, p. 36, hereinafter "the Convention"), as amended by
the Convention of 9 October 1978 on the Accession of the Kingdom of
Denmark, Ireland and the United Kingdom of Great Britain and Northern
Ireland (OJ 1978 L 304, p. 1 and - in the amended version - p. 77) and
by the Convention of 25 October 1982 on the Accession of the Hellenic
Republic (OJ 1982 L 388, p. 1), a question on the interpretation of Article
5(2) of the Convention.
2. That question was raised in proceedings between Ms Farrell, residing
in Dalkey, Ireland, and Mr Long, who is habitually resident in Bruges,
Belgium.
3. It appears from the documents in the main proceedings that Ms Farrell
is the mother of a child born on 3 July 1988 whose father is, she claims,
Mr Long. She brought an action against Mr Long before the District Court,
applying for a maintenance order in favour of that child.
4. Mr Long denies that he is the father of the child and contests the
jurisdiction of the Irish courts to entertain Ms Farrell's application.
5. Ms Farrell maintains that the Irish courts have jurisdiction under Article
5(2) of the Convention. That provision, which derogates from the rule
in the first paragraph of Article 2 conferring jurisdiction on the courts
of the Contracting State in which the defendant is domiciled, is in the
following terms: "A person domiciled in a Contracting State may, in
another Contracting State, be sued: (...)
2. in matters relating to maintenance, in the courts for the place where
the maintenance creditor is domiciled or habitually resident or, if the
matter is ancillary to proceedings concerning the status of a person, in the
court which, according to its own law, has jurisdiction to entertain those
proceedings, unless that jurisdiction is based solely on the nationality of
one of the parties".
6. Mr Long, on the other hand, maintains that that provision cannot apply.
He contends that Ms Farrell is not a maintenance creditor within the
meaning of Article 5(2) of the Convention because she has not obtained
any maintenance order recognizing her as such.
7. At first instance, the District Court dismissed the application on the
ground of lack of jurisdiction. Ms Farrell appealed against that judgment
to the Circuit Court, which has referred the following question to the
Court for a preliminary ruling: "Do the provisions of Article 5(2) of the
Convention on Jurisdiction and the Enforcement of Judgments in Civil and
Commercial Matters, signed at Brussels on the 27th day of September
1968, require as a condition precedent to the institution of maintenance
proceedings in the Irish courts by an applicant who is domiciled in Ireland
against a respondent who is domiciled in Belgium that the applicant has
previously obtained an order for maintenance against the respondent?"
8. By that question, the national court seeks in essence to ascertain
whether the first limb of Article 5(2) of the Convention must be
interpreted as meaning that the term `maintenance creditor' covers
any person applying for maintenance, including a person bringing a
maintenance action for the first time, or only persons whose entitlement
to maintenance has already been recognized by a previous judicial
decision.
9. The national court's question is prompted by the fact that the
Jurisdiction of Courts and Enforcement of Judgments (European
Communities) Act, 1988, which introduced the Brussels Convention into
Irish law, contains, in section 1, the following definition:
- "maintenance creditor" means, in relation to a maintenance order, the
person entitled to the payments for which the order provides.
Admissibility of the question referred
10. The respondent in the main proceedings denies that the question
referred is pertinent, on the ground that the maintenance obligation
at issue in the dispute before the national court is ancillary to the
issue of paternity, which is a matter of status, and that the applicable
provision is therefore not the first limb of Article 5(2), in which the term
`maintenance creditor' appears, but the second limb.
11. In the light of the division of responsibilities in the preliminary ruling
procedure laid down by the Protocol of 3 June 1971 on the interpretation
by the Court of Justice of the Convention, it is for the national court alone
to define the questions which it proposes to refer to the Court. According
to settled law, it is solely for the national court before which the dispute
has been brought, and which must assume the responsibility for the
subsequent judicial decision, to determine in the light of the particular
circumstances of each case both the need for a preliminary ruling in order
to enable it to deliver judgment and the relevance of the questions which
it submits to the Court (Case C-127/92 Enderby [1993] ECR I-5535,
paragraph 10).
The question referred
12. For the purpose of answering the question referred, it must be noted
that, according to settled law (see, in particular, Case C-125/92 Mulox
IBC v Geels [1993] ECR I-4075, paragraph 10, and Case C-383/95 Rutten
v Cross Medical [1997] ECR I-0000, paragraph 12), the Court will, in
principle, interpret the terms of the Convention autonomously so as to
ensure that it is fully effective having regard to the objectives of Article
220 of the EEC Treaty, for the implementation of which it was adopted.
13. Such autonomous interpretation is alone capable of ensuring uniform
application of the Convention, the objectives of which include unification
of the rules on jurisdiction of the Contracting States, so as to avoid as far
as possible multiplication of the bases of jurisdiction in relation to one and
the same legal relationship and to reinforce the legal protection available
to persons established in the Community by, at the same time, allowing
the plaintiff easily to identify the court before which he may bring an
action and the defendant reasonably to foresee the court before which he
may be sued (Mulox IBC, paragraph 11, and Rutten, paragraph 13).
14. Those considerations must also apply to the interpretation of the term
maintenance creditor in the first limb of Article 5(2) of the Convention,
since there is nothing to suggest that its meaning is intended under that
provision to be determined in accordance with the lex fori.
15. As to the meaning of that term, two arguments in particular
have been advanced before the Court. According to the first of those
arguments, put forward by the respondent in the main proceedings,
the term covers only persons whose entitlement to maintenance has
already been recognized by a previous judicial decision. Consequently, an
initial action brought by a maintenance applicant, seeking a finding that
maintenance is payable in principle, does not fall within that provision.
16. According to the second argument, advanced by the appellant
in the main proceedings, by the Irish, German and United Kingdom
Governments and by the Commission, the term must be construed as
referring to any person applying for maintenance, including a person
bringing a maintenance action for the first time.
17. It is necessary in that regard to determine the objective of Article 5(2)
of the Convention.
18. Article 5 introduces a series of derogations from the rule laid down in
the first paragraph of Article 2, which confers jurisdiction on the courts
of the Contracting State where the defendant is domiciled. Each of the
derogations from that rule provided for by Article 5 pursues a specific
objective.
19. In particular, the derogation provided for in Article 5(2) is intended
to offer the maintenance applicant, who is regarded as the weaker party
in such proceedings, an alternative basis of jurisdiction. In adopting that
approach, the drafters of the Convention considered that that specific
objective had to prevail over the objective of the rule contained in the first
paragraph of Article 2, which is to protect the defendant as the party who,
being the person sued, is generally in a weaker position.
20. It is common ground that that was the intention of the authors of the
Convention in cases where the entitlement to maintenance of a plaintiff in
an action brought on the basis of Article 5(2) has already been recognized
by a previous judicial decision and the new action seeks an order fixing
the amount of the maintenance, if it has not been fixed by the previous
decision, varying the amount already fixed, or requiring the maintenance
to be paid where the defendant is in arrears or refuses to pay.
21. It is necessary, therefore to examine whether that was also the
intention of the authors of the Convention in cases where a person
brings a maintenance action on the basis of Article 5(2) without having
previously obtained a judicial decision recognizing his or her entitlement
to maintenance.
22. That question must be answered in the affirmative.
23. Article 5(2) refers to the maintenance creditor in general terms,
without drawing any distinction between those already recognized and
those not yet recognized as entitled to maintenance.
24. That finding is borne out by the report drawn up by the committee
of experts who drafted the text of the Convention, known as the Jenard
Report (OJ 1979 C 59, p. 1, in particular p. 25). As regards Article 5(2) of
the Convention, that report states as follows: "... the court for the place
of domicile of the maintenance creditor is in the best position to know
whether the creditor is in need and to determine the extent of such need.
However, in order to align the Convention with the Hague Convention,
Article 5(2) also confers jurisdiction on the courts for the place of habitual
residence of the maintenance creditor. This alternative is justified in
relation to maintenance obligations since it enables in particular a wife
deserted by her husband to sue him for payment of maintenance in the
courts for the place where she herself is habitually resident, rather than
the place of her legal domicile....
As regards maintenance payments, the Committee did not overlook the
problems which might be raised by preliminary issues (for example,
the question of affiliation). However, it considered that these were not
properly problems of jurisdiction, and that any difficulties should be
considered in the chapter on recognition and enforcement of judgments".
25. It follows that Article 5(2) of the Convention is framed in such a way
as to apply to all actions brought in maintenance matters, including the
initial action brought by a person applying for maintenance, and that
consideration of the question of paternity as a preliminary issue in such
proceedings did not prompt the authors of the Convention to adopt any
different solution.
26. Moreover, no decisive argument has been advanced against such an
interpretation.
27. Having regard to the foregoing considerations, the first limb of Article
5(2) of the Convention must be interpreted as meaning that the term
`maintenance creditor' covers any person applying for maintenance,
including a person bringing a maintenance action for the first time.
Costs
28. The costs incurred by the Irish, German and United Kingdom
Governments and the Commission of the European Communities, which
have submitted observations to the Court, are not recoverable. Since
these proceedings are, for the parties to the main proceedings, a step in
the proceedings pending before the national court, the decision on costs is
a matter for that court.
On those grounds,
THE COURT (Sixth Chamber), in answer to the question referred to it
by the Circuit Court, County of Dublin, by order of 15 May 1995, hereby
rules:
The first limb of Article 5(2) of the Convention of 27 September 1968 on
Jurisdiction and the Enforcement of Judgments in Civil and Commercial
Matters, as amended by the Convention of 9 October 1978 on the
Accession of the Kingdom of Denmark, Ireland and the United Kingdom of
Great Britain and Northern Ireland and by the Convention of 25 October
1982 on the Accession of the Hellenic Republic, must be interpreted as
meaning that the term maintenance creditor covers any person applying
for maintenance, including a person bringing a maintenance action for the
first time.