PIL instrument(s)

Case number and/or case name

H.L. v. N.B. - Rb. Brugge, 11 July 2012

Details of the court

Belgium, First Instance

Articles referred to by the court

Date of the judgement

10 July 2012

Appeal history

CJEU's case law cited by the court

Summary

(Decision by the Bruges Court of First Instance) The facts of the case are not known. The divorce proceedings were brought before the Bruges Court of First Instance by the applicant on 29 April 2011. The defendant lodges a counterclaim for maintenance after divorce on 21 March 2012 in her written conclusions. The Court needs to examine its international jurisdiction. The date of application of Council Regulation No. 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations is 18 June 2011 (cf. Art. 76, third paragraph). Art. 75(1) Maintenance Regulation provides that “This Regulation shall apply only to proceedings instituted, to court settlements approved or concluded, and to authentic instruments established as from its date of application, subject to paragraphs 2 and 3.” Thus, the Court must examine when proceedings are “instituted” within the meaning of this Art. 75(1). The Maintenance Regulation itself does not provide a definition. The Court considers that the concept must receive an autonomous interpretation. The Court compares Art. 75(1) Maintenance Regulation, which refers to “procedures die zijn ingesteld” to Art. 18 of the Rome III Regulation (No. 1259/2010) which refers to “rechtszaken die worden ingeleid” and deduces that the meaning of both terms cannot be the same. The Court believes that the second term, in the sense of the Rome III Regulation, refers to the claim which initiates the judicial proceedings (cf. the acts which can be used to initiate proceedings enumerated in Art. 12 Belgian Judicial Code). The first term, within the meaning of the Maintenance Regulation, would then refer to the moment when the maintenance claim is put before the court. In the case at hand, this was at the time the defendant submitted its written conclusions on 21 March 2012. Therefore, the Maintenance Regulation is applicable. Art. 3(a) Maintenance Regulation confers jurisdiction to the court for the place where the defendant is habitually resident. The “habitual residence” of a person is the place where the person has established, on a fixed basis, his permanent or habitual centre of interests (comp. ECJ, 15 September 1994, no. C-452193, OJ [1994] I-4295). The habitual residence of the defendant, L., is in Belgium. The Belgian courts have jurisdiction. The applicable law shall be determined in accordance with the 2007 Hague Protocol (cf. Art. 15 Maintenance Regulation). Art. 3(1) of the 2007 Hague Protocol provides that maintenance obligations shall be governed by the law of the State of the habitual residence of the creditor. The creditor, B., is resident in Belgium. Belgian law is applicable. None of the parties has contested the applicable law on the basis of Art. 5 2007 Hague Protocol. SHORT CRITIQUE For the interpretation of Art. 75(1), the Court refers to the Dutch text of the Maintenance Regulation and the Rome III Regulation respectively. In the English version of these Regulations, however, the term used is nearly the same: “proceedings instituted” in the Maintenance Regulation and “legal proceedings instituted” in the Rome III Regulation. Furthermore, the Court correctly states that the Regulation should receive an autonomous, international interpretation instead of an interpretation based on the concepts of the court’s national law – but on the other hand, the court still refers to Art. 12 of the Belgian Judicial Code.