Court of Justice of the European Communities (including Court of First Instance Decisions)

Provisional text

JUDGMENT OF THE COURT (Ninth Chamber)

6 June 2024 (*)

(Reference for a preliminary ruling – Judicial cooperation in civil matters – Jurisdiction in matters relating to maintenance obligations – Regulation (EC) No 4/2009 – Article 12(1) – Lis pendens – Article 13 – Related actions – Concept)

In Case C‑381/23 [Geterfer], (i)

REQUEST for a preliminary ruling under Article 267 TFEU from the Amtsgericht Mönchengladbach-Rheydt (Local Court, Mönchengladbach-Rheydt, Germany), made by decision of 19 June 2023, received at the Court on 19 June 2023, in the proceedings

ZO

v

JS,

THE COURT (Ninth Chamber),

composed of O. Spineanu-Matei, President of the Chamber, J.-C. Bonichot and L.S. Rossi (Rapporteur), Judges,

Advocate General: M. Campos Sánchez-Bordona,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

–        the European Commission, by J. Vondung and W. Wils, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1        This request for a preliminary ruling concerns the interpretation of Article 12 of Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations (OJ 2009 L 7, p. 1).

2        The request has been made in proceedings between ZO, a child who has become an adult in the course of the proceedings, and her mother, JS, concerning the payment of maintenance.

 Regulation No 4/2009

3        Recitals 15 and 44 of Regulation No 4/2009 are worded as follows:

‘(15)      In order to preserve the interests of maintenance creditors and to promote the proper administration of justice within the European Union, the rules on jurisdiction as they result from [Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1)] should be adapted. …

…

(44)      This Regulation should amend Regulation (EC) No 44/2001 by replacing the provisions of that Regulation applicable to maintenance obligations. Subject to the transitional provisions of this Regulation, Member States should, in matters relating to maintenance obligations, apply the provisions of this Regulation on jurisdiction, recognition, enforceability and enforcement of decisions and on legal aid instead of those of Regulation (EC) No 44/2001 as from the date on which this Regulation becomes applicable.’

4        Article 1(1) of that regulation provides:

‘This Regulation shall apply to maintenance obligations arising from a family relationship, parentage, marriage or affinity.’

5        Chapter II of that regulation, entitled ‘Jurisdiction’, comprises Articles 3 to 14.

6        Article 3 of the same regulation provides:

‘In matters relating to maintenance obligations in Member States, jurisdiction shall lie with:

(a)      the court for the place where the defendant is habitually resident, or

(b)      the court for the place where the creditor is habitually resident, or

(c)      the court which, according to its own law, has jurisdiction to entertain proceedings concerning the status of a person if the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties, …

…’

7        Article 12 of Regulation No 4/2009, entitled ‘Lis pendens’, provides:

‘1.      Where proceedings involving the same cause of action and between the same parties are brought in the courts of different Member States, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.

2.      Where the jurisdiction of the court first seised is established, any court other than the court first seised shall decline jurisdiction in favour of that court.’

8        Article 13 of that regulation, entitled ‘Related actions’, states:

‘1.      Where related actions are pending in the courts of different Member States, any court other than the court first seised may stay its proceedings.

2.      Where these actions are pending at first instance, any court other than the court first seised may also, on the application of one of the parties, decline jurisdiction if the court first seised has jurisdiction over the actions in question and its law permits the consolidation thereof.

3.      For the purposes of this Article, actions are deemed to be related where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings.’

9        Article 24 that regulation, entitled ‘Grounds of refusal of recognition’, states in point (c) of the first paragraph:

‘A decision shall not be recognised:

…

(c)      if it is irreconcilable with a decision given in a dispute between the same parties in the Member State in which recognition is sought’.

10      It follows from Article 68(1) of Regulation No 4/2009 that, subject to the transitional provisions laid down in Article 75(2) thereof, that regulation modifies Regulation No 44/2001 by replacing the provisions of the latter applicable to maintenance obligations.

 The dispute in the main proceedings and the question referred for a preliminary ruling

11      ZO, the applicant in the main proceedings, was born in November 2001, of the marriage between her father and JS, the defendant in the main proceedings. That marriage was definitively dissolved in November 2010.

12      ZO’s father resides in Germany, while her mother resides in Belgium.

13      Following the separation of her parents, ZO initially lived with her mother, to whom her father had to pay monthly maintenance payments for ZO and her brother, in accordance with a judgment of 17 December 2014 of the tribunal de première instance d’Eupen (Court of First Instance, Eupen, Belgium).

14      By judgment of 31 August 2017, the tribunal de première instance d’Eupen (Court of First Instance, Eupen) transferred the ‘principal right of custody’ to the father.

15      ZO spends the week at boarding school in Germany and resides mainly with her father during school holidays. According to the information contained in the request for a preliminary ruling, ZO retains an address in the municipality where her mother resides in Belgium, but refuses to have contact with her.

16      In the case in the main proceedings, ZO is claiming maintenance – which must still be quantified – from her mother for the period from November 2017 until an unspecified date. The mother raises a plea of lis pendens.

17      When the main proceedings were brought, proceedings brought by the mother against ZO’s father were already pending before the tribunal de première instance d’Eupen (Court of First Instance, Eupen). In those proceedings, the mother claims a right to compensation for having provided accommodation and maintenance for her daughter from 1 August 2017 to 31 December 2018.

18      By order of 3 November 2021, the Amtsgericht Mönchengladbach-Rheydt (Local Court, Mönchengladbach-Rheydt, Germany) declared that it had jurisdiction to hear ZO’s application under Article 3(b) of Regulation No 4/2009. However, it dismissed that claim as inadmissible on the grounds of lis pendens, since proceedings had previously been brought by the mother before the tribunal de première instance d’Eupen (Court of First Instance, Eupen). The Amtsgericht Mönchengladbach-Rheydt (Local Court, Mönchengladbach-Rheydt) found, inter alia, that the two sets of proceedings concerned the payment of child maintenance, stating, in addition, that, in Belgium, in accordance with Articles 203 and 203 bis of the Civil Code, the parents, by virtue of an obligation to make a mutual contribution, are required to provide for the maintenance of their children until they complete their training, even after reaching the age of majority, set at 18.

19      By order of 26 April 2022, the Oberlandesgericht Düsseldorf (Higher Regional Court, Düsseldorf, Germany) upheld the appeal brought by ZO against the order of the Amtsgericht Mönchengladbach-Rheydt (Local Court, Mönchengladbach-Rheydt) on the ground that the two sets of proceedings do not involve the same parties and do not have the same cause of action. That court referred the case back to the Amtsgericht Mönchengladbach-Rheydt (Local Court, Mönchengladbach-Rheydt) for reconsideration.

20      The latter court, which is the referring court, considers, with reference to the judgment of 19 May 1998, Drouot assurances (C‑351/96, EU:C:1998:242), that the interests of the applicant in the main proceedings and of her father, the defendant in the main proceedings before the tribunal de première instance d’Eupen (Court of First Instance, Eupen), are so identical that those persons may be regarded as being one and the same party for the purposes of lis pendens. Moreover, the two pending sets of proceedings have the same object, namely an action for the award of maintenance. However, the referring court has doubts as to the interpretation of Article 12 of Regulation No 4/2009 and the application of that provision in the main proceedings.

21      In those circumstances, the Amtsgericht Mönchengladbach-Rheydt (Local Court, Mönchengladbach-Rheydt) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘According to … Regulation (EC) No 4/2009 …, is there lis alibi pendens with the same [object] if there are proceedings concerning child maintenance in Belgium between the child’s father and the child’s mother while proceedings concerning child maintenance have been brought at a later stage by the child, who has in the meantime come of age, against the child’s mother in Germany[?]’

 Consideration of the question referred for a preliminary ruling

22      By its question, the referring court asks, in essence, whether Article 12(1) of Regulation No 4/2009 must be interpreted as meaning that the conditions for recognition of a situation of lis pendens laid down in that provision, under which proceedings must have the same cause of action and must be brought between the same parties, are satisfied where, at the time an action is brought before a court of one Member State by a child, who has in the meantime become an adult, for payment of maintenance from her mother, an action has already been brought by the mother before a court of another Member State by which the mother claims from the father of the child compensation for the accommodation and maintenance of that child.

23      As a preliminary point, it should be noted that, as is apparent from Articles 68(1) and 75(2) of Regulation No 4/2009, that regulation replaced, in matters relating to maintenance obligations, Regulation No 44/2001, which itself replaced, as between the Member States, the Brussels Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (OJ 1972 L 299, p.32), as amended by successive conventions on the accession of new Member States to that convention (‘the Brussels Convention’).

24      As the Commission argued, in essence, in its written observations, the Court’s interpretation of the provisions of one of those legal instruments also applies to those of the others, whenever those provisions may be regarded as ‘equivalent’ (see, to that effect, judgment of 20 June 2022, London Steam-Ship Owners’ Mutual Insurance Association, C‑700/20, EU:C:2022:488, paragraph 42).

25      That is true of the provisions relating to lis pendens, which are contained respectively in the first paragraph of Article 21 of the Brussels Convention, in Article 27 of Regulation No 44/2001 and, in matters relating to maintenance obligations, in Article 12 of Regulation No 4/2009, the provisions of which are drafted in similar terms.

26      Thus, by analogy with the first paragraph of Article 21 of the Brussels Convention and Article 27(1) of Regulation No 44/2001, Article 12(1) of Regulation No 4/2009 provides that, where proceedings involving the same cause of action and between the same parties are brought in the courts of different Member States, any court other than the court first seised is to stay its proceedings of its own motion until such time as the jurisdiction of the court first seised is established.

27      That lis pendens rule, like that in the first paragraph of Article 21 of the Brussels Convention and that in Article 27 of Regulation No 44/2001, is intended, in the interests of the proper administration of justice, as noted, inter alia, in recital 15 of Regulation No 4/2009, to reduce the possibility of parallel proceedings before the courts of different Member States and to ensure that irreconcilable judgments will not be given where a number of courts have jurisdiction to hear and determine the same dispute (see, by analogy, judgments of 14 October 2004, Mærsk Olie & Gas, C‑39/02, EU:C:2004:615, paragraph 31 and of 22 October 2015, Aannemingsbedrijf Aertssen and Aertssen Terrassements, C‑523/14, EU:C:2015:722, paragraph 39).

28      Thus, Article 12 of Regulation No 4/2009 seeks to exclude, as far as possible, a situation such as that referred to in point (c) of the first paragraph of Article 24 of that regulation, that is to say the non-recognition of a judgment on account of its irreconcilability with a decision given in a dispute between the same parties in the Member State in which recognition is sought (see, to that effect, by analogy, judgment of 14 October 2004, Mærsk Olie & Gas, C‑39/02, EU:C:2004:615, paragraph 31).

29      That mechanism to resolve cases of lis pendens is objective and automatic and is based on the chronological order in which the courts concerned were seised (see, by analogy, judgment of 22 October 2015, Aannemingsbedrijf Aertssen and Aertssen Terrassements, C‑523/14, EU:C:2015:722, paragraph 48 and the case-law cited).

30      Furthermore, having regard to the fact that Article 12(1) of Regulation No 4/2009 does not refer to the legal systems of the Member States but refers to a number of substantive conditions as components of the definition of a situation of lis pendens, the concepts used in Article 12 must be regarded as independent (see, to that effect, by analogy, judgment of 8 December 1987, Gubisch Maschinenfabrik, 144/86, EU:C:1987:528, paragraph 11).

31      As is apparent from the wording of Article 12(1) of Regulation No 4/2009, as stated in paragraph 26 of the present judgment, several cumulative conditions must be satisfied in order to determine whether there is a situation of lis pendens. Thus, it is established where the proceedings are brought ‘between the same parties’ and have ‘the same cause of action’.

32      In the case in the main proceedings, the referring court questions whether the conditions that pending parallel proceedings must be brought between the same parties and that they must have the same object are satisfied.

33      In the first place, as regards the condition that the proceedings must be brought between the ‘same parties’, the doubts expressed by the referring court arise from the fact that, while the dispute before the tribunal de première instance d’Eupen (Court of First Instance, Eupen) is between the mother and the father of the child, the dispute brought before the referring court is between that child, who has in the meantime become an adult, and her mother, with the result that, formally, those parties are not identical.

34      In that regard, it is true that the Court has already held that it is necessary, in principle, for the parties to the disputes to be identical, irrespective of the position of one or other of them in the two parallel proceedings (see, to that effect, by analogy, judgment of 22 October 2015, Aannemingsbedrijf Aertssen and Aertssen Terrassements, C‑523/14, EU:C:2015:722, paragraph 41 and the case-law cited).

35      However, as the referring court points out, the Court accepted, in the judgment of 19 May 1998, Drouot assurances (C‑351/96, EU:C:1998:242, paragraphs 19, 23 and 25), which concerned the interpretation of the first paragraph of Article 21 of the Brussels Convention, that formally different parties, namely an insurer and its insured, may, in relation to the object of the two disputes at issue, have interests so identical and indissociable that a judgment against one would have the force of res judicata in relation to the other, so that they had to be regarded as being one and the same party for the purposes of the application of that provision.

36      A similar interpretation of the concept of ‘the same parties’ may be adopted in the context of Article 12(1) of Regulation No 4/2009.

37      Having regard to the subject matter of that regulation, which, as stated in Article 1(1) thereof, relates to maintenance obligations arising from a family relationship, parentage, marriage or affinity, and therefore frequently concerns maintenance claims of a minor child, which are brought by other persons, such as one and/or the other of his or her parents or a public social benefits body legally subrogated to the rights of that creditor, it must be acknowledged that, in certain situations, formally different parties may, in relation to the object of two sets of proceedings, have an interest which is so identical and indissociable, namely the interests of the child concerned as a maintenance creditor, that a judgment delivered against one of those parties would have the force of res judicata vis-à-vis the other. In such a case, those parties must be capable of being regarded as one and the same party within the meaning of Article 12 of that regulation.

38      That interpretation is supported by Article 3(c) of Regulation No 4/2009. That provision acknowledges that an action relating to maintenance obligations may also be ancillary to proceedings concerning the status of a person, such as divorce proceedings, the parties to which are necessarily the parents of the child concerned and in respect of which at least one of those parents represents the interests of that child in the ancillary proceedings relating to maintenance.

39      In the case in the main proceedings, it will therefore be for the referring court to ascertain whether, having regard to the object of the parallel proceedings and the fact that the applicant in the main proceedings has become an adult in the course of the proceedings, the interests of that applicant are so indissociable from those of her father, the defendant before the tribunal de première instance d’Eupen (Court of First Instance, Eupen), that a judgment delivered in one of those cases against one of those parties would have the force of res judicata as against the other party.

40      In the second place, as regards the condition that the object of the actions must be the same, it must be borne in mind that that condition means that those actions must have the same end in view, taking into account the applicants’ respective claims in each of the disputes and not the defence which may be raised by a defendant (see, to that effect, by analogy, judgment of 8 May 2003, Gantner Electronic, C‑111/01, EU:C:2003:257, paragraphs 25 and 26 and the case-law cited).

41      In that regard, it is apparent from the request for a preliminary ruling that, before the tribunal de première instance d’Eupen (Court of First Instance, Eupen), the mother is claiming from the father reimbursement of accommodation and maintenance costs for their daughter, which were incurred between 1 August 2017 and 31 December 2018, whereas, before the referring court, the applicant in the main proceedings claims from her mother the payment, in cash, of maintenance for the period from 1 November 2017 to an unspecified date, but which may continue after November 2019, the month during which the applicant in the main proceedings became an adult.

42      Therefore, it does not appear, as the Commission stated in its written observations, that the actions brought in each of the parallel disputes at issue have the same object. Although those disputes relate, generically, to the payment of maintenance, the applicants’ actions do not have the same end in view and do not relate to the same period.

43      Consequently, since the conditions laid down in Article 12(1) of Regulation No 4/2009 are cumulative, a situation of lis pendens cannot be established in view of the information before the Court.

44      That said, it must be pointed out that, as the Commission has rightly observed, the absence of a situation of lis pendens does not preclude the application of Article 13 of Regulation No 4/2009 if the referring court considers that the actions at issue are sufficiently closely connected for them to be regarded as related, within the meaning of Article 13(3) of that regulation, with the result that, as it is not the court first seised, that court could stay the proceedings.

45      In the light of all the foregoing considerations, the answer to the question referred is that Article 12(1) of Regulation No 4/2009 must be interpreted as meaning that the conditions for recognition of a situation of lis pendens laid down in that provision, under which proceedings must have the same cause of action and must be brought between the same parties, are not satisfied when, at the time a claim is brought before a court of one Member State by a child – who has in the meantime become an adult – for payment of maintenance from his or her mother, a claim has already been brought before a court of another Member State by the mother seeking compensation from the child’s father for accommodation and maintenance of that child, since the applicants’ actions do not have the same end in view and do not relate to the same period. The absence of a situation of lis pendens, within the meaning of Article 12(1) of Regulation No 4/2009, does not, however, preclude the application of Article 13 of that regulation if the actions at issue are sufficiently closely connected for them to be regarded as related within the meaning of Article 13(3) of that regulation, with the result that, where it is not the court first seised, the referring court may stay the proceedings.

 Costs

46      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Ninth Chamber) hereby rules:

Article 12(1) of Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations

must be interpreted as meaning that the conditions for recognition of a situation of lis pendens laid down in that provision, under which proceedings must have the same cause of action and must be brought between the same parties, are not satisfied when, at the time a claim is brought before a court of one Member State by a child – who has in the meantime become an adult – for payment of maintenance from his or her mother, a claim has already been brought before a court of another Member State by the mother seeking compensation from the child’s father for accommodation and maintenance of that child, since the applicants’ actions do not have the same end in view and do not relate to the same period. The absence of a situation of lis pendens, within the meaning of Article 12(1) of Regulation No 4/2009, does not, however, preclude the application of Article 13 of that regulation if the actions at issue are sufficiently closely connected for them to be regarded as related within the meaning of Article 13(3) of that regulation, with the result that, where it is not the court first seised, the referring court may stay the proceedings.

[Signatures]

*      Language of the case: German.

i      The name of the present case is a fictitious name. It does not correspond to the real name of any of the parties to the proceedings.

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