EUPillar Fanelli v. D’Agostino and Castaldo - J.P. Bruxelles, 8 April 2011

Summary

The applicant in these third-party proceedings is the mother of Mr. Claudio Castaldo. The latter married Mrs. Guiseppina D’Agostino in Rome in 1981. In May 1989, the parties went to live in Brussels. The spouses have no children. From September 1997, Mrs. D’Agostino was domiciled again in Italy and Mr. Castaldo was domiciled first in Italy and then in the Grand Duchy of Luxembourg. Mr. Castaldo and Mrs. D’Agostino provided a joint and several guarantee for the SPRL Palazzo Altieri Roma (a company incorporated in Belgium) in favour of the SA Fortis Banque. The undertaking went bankrupt on 30 April 1997. In 2009, the applicant, Mrs. Luigina Fanelli, paid 15,000 EUR to the SA Fortis Banque. Mrs. Fanelli was subrogated in the rights of Fortis as against Mr. Castaldo and Mrs. D’Agostino for the amount paid. In a judgment of 12 September 1997, the Justice of the Peace of Brussels had authorised the spouses to reside separately and ordered Mr. Castaldo to pay a monthly allowance to Mrs. D’Agostino of 71.500 BEF (= 1.772,88 EUR). Mrs. D’Agostino was allowed to directly perceive this sum from the monthly disability award Mr. Castaldo receives from the European Commission, where he was a civil servant. This judgment has been in force and executed to this day. An application for legal separation was made by Mr. Castaldo to the Civil Court of Rome on 18 March 2009. The Civil Court ordered a further inquiry to find out whether the spouses had lived together after their separation, in order to determine its jurisdiction. The present case is concerned with third party proceedings against the judgment of the Justice of the Peace of Brussels of 12 September 1997. The defendant argues that the court does not have jurisdiction, since the parties – who have Italian nationality – were domiciled in Belgium at the time of the disputed decision, but have since moved their domicile to Italy and Luxembourg respectively. The Brussels IIa Regulation provides that in urgent cases, the courts of a Member State may take provisional and protective measures in respect of persons or assets in that State even if under the Regulation, the court of another Member State has jurisdiction as to the substance of the matter. Therefore, even if the courts in Rome have jurisdiction over the divorce proceedings, the Belgian courts are allowed to take provisional measures over the persons and assets in Belgium. The third-party proceedings are a legal remedy against the initial judgment of the Belgian Justice of the Peace. It is inconceivable that a Roman judge could take cognisance of these proceedings, even if the parties are now no longer domiciled in Belgium. Short critique The facts of this case are highly exceptional. The mother of one of the spouses, who had lent the spouses money during their marriage, lodged a third-party appeal against a judgment which granted a monthly allowance to her son's ex-wife. The initial decision dates from 1997 and was taken on the basis of art. 223 Belgian Civil Code. This is a provision which allows the Belgian Justice of the Peace to take certain provisional measures during a temporary separation of married spouses. These measures can be taken prior to and independently from any divorce proceedings. Indeed, in this the case the divorce proceedings were initiated by the husband almost 12 years later, before the Italian courts. The Belgian court decides that it is still competent to take cognisance of an appeal against that initial decision of 1997. That is correct. The court doesn't need art. 20 Brussels IIa to justify its jurisdiction.