Case C-361/24, Grecniaka: Request for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 17 May 2024 – RX v FZ and VT
Date: 2024-05-17
Institutions: Court of Justice
Subjects: Austria, Poland, child, divorce, judicial cooperation in civil matters in the EU, maintenance obligation, territorial jurisdiction








C_202405077EN.000101.fmx.xml












Official Journal of the European Union


EN
C series













C/2024/5077


26.8.2024






Request for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 17 May 2024 – RX v FZ and VT


(Case C-361/24, Grecniaka)
                (1)

(C/2024/5077)
Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings


Appellant in the appeal on a point of law: RX

Respondents in the appeal on a point of law: FZ, VT

Questions referred









1.


Is Article 12 of Council Regulation (EC) No 4/2009 (2) of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, OJ EU 2009 L 7/1 (‘the EU Maintenance Regulation’) to be interpreted as meaning that two sets of proceedings are pending ‘between the same parties’ if, in one set of proceedings, minors assert their claim against the father for payment of current maintenance while, in the other set of proceedings, the father is also seeking, in addition to a divorce from the mother of the minors, a decision determining his maintenance obligation towards the minors, even though the minors are neither applicants nor respondents in the divorce proceedings?












2(a)


Is Article 12 of the EU Maintenance Regulation to be interpreted as meaning that proceedings 
                  ‘involving the same cause of action’
                have been instituted if, in one set of proceedings, the minors are asserting their claim to current maintenance with immediate effect, whereas, in the other set of proceedings, the father is also seeking, in addition to a divorce from the mother, a decision determining his obligation to pay current maintenance for the minors as a consequence of the divorce, that is to say in respect of a future period for which the start date is not yet foreseeable?












2(b)


For the purposes of the foregoing assessment, is it relevant whether the current maintenance sought by the minors is subject to a formal time limit expiring upon termination of the divorce proceedings?












2(c)


Does the answer to questions 2(a) and 2(b) differ if the minors are seeking current maintenance in the form of an order for a provisional measure?












2(d)


Does it make a difference, in that regard, whether the possibility of the periods overlapping is excluded by the wording of the application, or is merely practically unlikely because the provisional maintenance claim granted in Austria is subject to a time limit that expires upon termination of Austrian (main-) maintenance proceedings, that are suspended pending a decision on jurisdiction in the Polish divorce proceedings?












3.


Is Article 14 of the EU Maintenance Regulation to be interpreted as meaning that, where main proceedings are pending, the applicant may initiate proceedings seeking provisional protective measures under Article 14 in all courts specified in Articles 3 et seq. of the EU Maintenance Regulation, notwithstanding the fact that the applicant is precluded from seising those courts of (further) main proceedings because a set of main proceedings has already been initiated and lis pendens within the meaning of Article 12 is thus established?












4.


If Question 3 is answered in the negative: Is Article 14 of the EU Maintenance Regulation to be interpreted as meaning that the applicant may also initiate proceedings seeking provisional protective measures under Article 14 before a court which has already been seised of main proceedings but has currently stayed its proceedings because main proceedings had already been initiated and lis pendens within the meaning of Article 12 is thus established?












5.


If Question 3 is answered in the negative: Is Article 14 of the EU Maintenance Regulation to be interpreted as meaning that an application for provisional, including protective, measures can be made only to a court having jurisdiction on the basis of national rules if there is a real connecting link between the measure applied for and the territorial jurisdiction within the meaning of the case-law laid down in Case C-391/95, van Uden, and Case C-125/79, Denilauler v S. N. C. Couchet Frères?
If so, are there other criteria which should be taken into consideration for the purposes of determining whether there is a real connecting link besides the question of whether enforcement proceedings appear likely to be successful in that Member State (in particular, for the purposes of the present case, the domicile of the applicant minors; the staying of the main proceedings, which are suspended because of the minors’ application; the domicile of the respondent at the time of initiation of the main proceedings, which are suspended because of the minors’ application)?












6.


If Question 3 is answered in the negative: Is Article 5 of the EU Maintenance Regulation to be interpreted as meaning that the father’s appearance in proceedings for provisional spousal maintenance also amounts to an appearance in proceedings for provisional child maintenance if all maintenance claims are based on the fact that the father/husband has left the family and are the subject of the same divorce proceedings giving rise to lis pendens, but the protective measures vis-à-vis the maintenance must, under national law, be asserted in different types of proceedings?






(1)  The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.

(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 (OJ 2009 L 7, p. 1).


ELI: http://data.europa.eu/eli/C/2024/5077/oj
ISSN 1977-091X (electronic edition)