PIL instrument(s)
Hague Maintenance Protocol
Case number and/or case name
OLG Nürnberg, 11.1.2012 – 7 UF 747/11
Details of the court
Germany, Second Instance
Articles referred to by the court
Hague Maintenance Protocol
Date of the judgement
10 January 2012
CJEU's case law cited by the court
Summary
The parties argued on the applicant’s obligation to pay alimony. The husband had made an application for a declaration saying his obligation to pay alimony didn’t exist any longer.
The problematic question was to find out the applicable law by examining the scope of application of the Hague Maintenance Protocol. The court stated that before the 18/6/11 (Maintenance Regulation’s coming into effect) the applicable law had to be determined by applying the rules of the Hague Treaty on the law applicable to Maintenance obligations. After that point of time one had to apply the Hague Maintenance Protocol according to Art. 15 Maintenance Regulation.
The court missed the point of the temporal applicability of the Maintenance Regulation itself: Art. 75 Maintenance Regulation states that Art. 15 Maintenance Regulation, that orders the application of the Hague Maintenance Protocol, has to be applied to proceedings initiated after 18/6/2011. But the proceedings in the present case were initiated before this date. Therefore, Art. 15 Maintenance Regulation (and also the Hague Maintenance Protocol) couldn’t be applied to the case. In case however, both ways lead to the applicability of German law.