PIL instrument(s)

Case number and/or case name

KG, 13.5.2009 – 3 UF 93/08

Details of the court

Germany, Second Instance

Articles referred to by the court

Date of the judgement

12 May 2009

Appeal history

CJEU's case law cited by the court

Summary

The parties argued about the question whether the Local Court in Germany has correctly refused the application of divorce as inadmissible. The application was received by the court the 5 February 2008 and delivered to the defendant’s representative the 28 February 2008. An application for divorce had been filed to the Tribunal de Première Instance in Geneva the 14 February 2008. The court held that German courts were internationally competent pursuant to Art 3 (1) (b) Brussels IIa. The first instance court correctly refused the application as inadmissible in view of the provision on lis alibi pendens of German procedural law (§ 261 (3) No 1 ZPO). The court found that this rule was not superseded by Art 19 Brussels IIa as the European provision did not apply towards Switzerland (‘courts of different Member States’). In order to justify this reading, it referred to Art 2 no 1 Brussels IIa.