EUPillar T.S. v D. - Civ. Bruxelles, 25 April 2006

Summary

Mr. D. has French nationality and Mrs. S. has Austrian nationality. The spouses have one daughter, E., who has dual Franco-Austrian nationality. After their marriage, the parties first lived in Vienna. In September 2003, the family came to Belgium because Mrs. S. obtained a job with the Permanent Representation of Austria to the EU. When the relationship between the parties deteriorated, Mrs. S. applied for measures on the basis of Art. 223 Belgian Civil Code on 15 June 2005. The court allowed the parties to reside separately and provided that the parents would have joint parental authority and equal rights of custody. In August 2005, it appeared that Mrs. S. would have to move back to Austria to take up her old job within the Ministry of Foreign Affairs. By a decision of 12 December 2005, the Justice of the Peace allows Mrs. S. to move to Vienna and maintains the joint exercise of parental authority, but grants custody of the child to the father so that the child can continue her schooling in Belgium. Mrs. S. lodges an appeal against that decision. On 19 December 2005, Mrs. S. also seises a court in Vienna, arguing that that court has jurisdiction on the basis of Art. 15 Brussels IIa. The Austrian court withholds its jurisdiction on the basis of the particular connection that exists between the child and Austria, in a decision of 24 February 2006. The Austrian court also rejects Mr. D.’s request for a declaration of enforceability of the Belgian decision because the child had not been heard by the Belgian court. Finally, on 13 March 2006, Mrs. S. initiated divorce proceedings before the Austrian courts. The current proceedings are concerned with the appeal against the decision of the Justice of the Peace of 12 December 2005. The Court of First Instance, hearing the case on appeal, decides first of all that there is no risk of irreconcilable decisions. The proceedings before the Belgian courts relate to measures that are taken to arrange the situation of the parties while they are still married, while the proceedings which were initiated in Austria are concerned with the divorce and the consequences of that divorce. The object of both proceedings is not the same. However, the decision which was taken by the Austrian court on 24 February 2006 does not relate to these divorce proceedings which were only initiated later. It is uncontested that at the time the Justice of the Peace of Etterbeek was seised, it has jurisdiction on the basis of Art. 8 Brussels IIa. Pursuant to Art. 15 Brussels IIa, the courts of a Member State may request a transfer to another court which it believes it better placed to hear the case. The transfer can take place upon application of a party, of the court’s own motion or upon application from a court of another Member State with which the child has a particular connection. This is the case here, since the Austrian court decided that this particular connection is established and requested the court in Brussels to transfer its jurisdiction. The Court does not have to accept this request, it is not automatic. Mrs. S. seised the Austrian court directly, without first having addressed the Belgian court regarding this request for a transfer, so that Art. 15(5), which refers to Art. 15(1)(a) and (b) does not apply. The Court of First Instance decides that the courts of Vienna are not better placed to hear the case. The Court hears an appeal against a decision of the Justice of the Peace of Etterbeek, Belgium. Only a Belgian court can hear such an appeal. Since the courts of Vienna are unable to rescind a decision of the Belgian courts, the Belgian decision would continue to exist and be able to be enforced in Belgium. This could lead to irreconcilability when the Austrian courts hand down their decision. In conclusion, the Belgian Court of First Instance decides to withhold its jurisdiction and does not transfer the case.