Provisional text
JUDGMENT OF THE COURT (Third Chamber)
12 March 2026 (*)
( Reference for a preliminary ruling – Area of Freedom, Security and Justice – Judicial cooperation in civil matters – Regulation (EC) No 4/2009 – Jurisdiction in matters relating to maintenance obligations – Article 12 – Lis pendens – Determination of the court first seised – Article 9(a) – Concept of an ‘equivalent document’ with regard to a document instituting the proceedings – Submission of an application for legal aid before a court of a Member State by a maintenance creditor with a view to bringing an action for the variation of maintenance obligations owed to him or her – Subsequent application submitted by the maintenance debtor to vary his or her maintenance obligations before a court of another Member State – Subsequent action by the maintenance creditor before the first court after that court has granted legal aid – Classification of that application for legal aid as an ‘equivalent document’ – Conditions )
In Case C‑516/24 [Winderwill], (i)
REQUEST for a preliminary ruling under Article 267 TFEU from the Amtsgericht Schleswig (Local Court, Schleswig, Germany), made by decision of 22 July 2024, received at the Court on 24 July 2024, in the proceedings
BC, represented by his legal representative,
v
LG,
THE COURT (Third Chamber),
composed of C. Lycourgos, President of the Chamber, O. Spineanu-Matei (Rapporteur), S. Rodin, N. Piçarra and N. Fenger, Judges,
Advocate General: R. Norkus,
Registrar: E. Sartori, Administrator,
having regard to the written procedure and further to the hearing on 18 June 2025,
after considering the observations submitted on behalf of:
– BC, by A. Kröner, Rechtsanwältin,
– LG, by M. Horn, Rechtsanwältin,
– the German Government, by J. Möller, M. Hellmann and A. Sahner, acting as Agents,
– the Czech Government, by A. Pagáčová, M. Smolek and J. Vláčil, acting as Agents,
– the European Commission, by B. Ernst, M. Wasmeier and W. Wils, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 2 October 2025,
gives the following
Judgment
1 This request for a preliminary ruling concerns the interpretation of Article 9(a) 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 BC, a minor child, and LG, his father, concerning the variation of the maintenance obligations owed by the latter.
Legal context
Lugano II Convention
3 Article 27 of the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, signed on 30 October 2007 (‘the Lugano II Convention’), the conclusion of which was approved on behalf of the European Community by Council Decision 2009/430/EC of 27 November 2008 (OJ 2009 L 147, p. 1) provides:
‘1. Where proceedings involving the same cause of action and between the same parties are brought in the courts of different States bound by this Convention, 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.’
4 Under Article 30(1) of that convention:
‘For the purposes of this Section, a court shall be deemed to be seised:
1. at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the [claimant] has not subsequently failed to take the steps he was required to take to have service effected on the defendant; …’
European Union law
Regulation (EC) No 44/2001
5 Article 27 of 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), provided:
‘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.’
6 Article 30(1) of that regulation was worded as follows:
‘For the purposes of this Section, a court shall be deemed to be seised:
1. at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the [claimant] has not subsequently failed to take the steps he was required to take to have service effected on the defendant …’
Regulation No 4/2009
7 Recitals 15 and 36 of Regulation No 4/2009 state:
‘(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 Regulation [No 44/2001] should be adapted. …
…
(36) On account of the costs of proceedings it is appropriate to provide for a very favourable legal aid scheme, that is, full coverage of the costs relating to proceedings concerning maintenance obligations in respect of children under the age of 21 initiated via the Central Authorities. Specific rules should therefore be added to the current rules on legal aid in the European Union which exist by virtue of [Council Directive 2002/8/EC of 27 January 2003 to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes (OJ 2003 L 26, p. 41)] thus setting up a special legal aid scheme for maintenance obligations. …’
8 Article 9 of Regulation No 4/2009, entitled ‘Seising of a court’, is worded as follows:
‘For the purposes of this Chapter, a court shall be deemed to be seised:
(a) at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the claimant has not subsequently failed to take the steps he was required to take to have service effected on the defendant; or
(b) if the document has to be served before being lodged with the court, at the time when it is received by the authority responsible for service, provided that the claimant has not subsequently failed to take the steps he was required to take to have the document lodged with the court.’
9 Article 12 of that regulation, 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.’
10 Under Article 44 of that regulation, headed ‘Right to legal aid’:
‘1. Parties who are involved in a dispute covered by this Regulation shall have effective access to justice in another Member State, including enforcement and appeal or review procedures, in accordance with the conditions laid down in this Chapter.
…
2. To ensure such effective access, Member States shall provide legal aid in accordance with this Chapter, unless paragraph 3 applies.
3. In cases covered by Chapter VII, a Member State shall not be obliged to provide legal aid if and to the extent that the procedures of that Member State enable the parties to make the case without the need for legal aid, and the Central Authority provides such services as are necessary free of charge.
4. Entitlements to legal aid shall not be less than those available in equivalent domestic cases.
…’
11 Article 46 of that regulation, entitled ‘Free legal aid for applications through Central Authorities concerning maintenance to children’ is worded as follows:
‘1. The requested Member State shall provide free legal aid in respect of all applications by a creditor under Article 56 concerning maintenance obligations arising from a parent-child relationship towards a person under the age of 21.
2. Notwithstanding paragraph 1, the competent authority of the requested Member State may, in relation to applications other than those under Article 56(1)(a) and (b), refuse free legal aid if it considers that, on the merits, the application or any appeal or review is manifestly unfounded.’
German law
Law on proceedings in family matters and in matters of non-contentious jurisdiction
12 The first sentence of Paragraph 113(1) of the Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit (Law on proceedings in family matters and in matters of non-contentious jurisdiction) of 17 December 2008 (BGBl. 2008 I, p. 2586), in the version applicable to the dispute in the main proceedings, provides that certain provisions of that law do not apply to matrimonial and contentious family matters. The second sentence of that provision states that, in that regard, the general provisions of the Zivilprozessordnung (Code of Civil Procedure) and the provisions of that code relating to proceedings before the regional courts (Landgerichte) are applicable mutatis mutandis.
The ZPO
13 Paragraph 114(1) of the Code of Civil Procedure, in the version applicable to the dispute in the main proceedings (‘the ZPO’), provides:
‘A party which, on account of his or her personal and financial circumstances, is unable to pay the costs of the proceedings, or is able to pay them only in part or in instalments, shall receive legal aid, upon application, if the intended action or defence presents a sufficient prospect of success and does not appear to be frivolous. …’
14 Paragraph 117 of the ZPO provides:
‘(1) The application for legal aid must be made to the court hearing the case; that application may be made by submitting a declaration to the court registry. The application must set out the facts of the case and indicate the evidence. …
(2) The application must be accompanied by a declaration from the applicant detailing his or her personal and financial circumstances (family circumstances, occupation, assets, income and expenses), along with the relevant supporting documents. The declaration and supporting documents may be communicated to the defendant only with the consent of the applicant, unless the defendant has a right under civil law to be informed of the applicant’s income and assets. Before the declaration is sent to the defendant, the applicant shall be given the opportunity to state his or her position. The applicant shall be notified that his or her declaration has been sent.
…’
15 Paragraph 118(1) of the ZPO reads as follows:
‘The defendant shall be given the opportunity to state his or her opinion on whether the conditions for granting legal aid are satisfied, except where it would be inappropriate to do so for specific reasons. That position statement may be recorded by submitting a declaration to the court registry. The court may invite the parties to an oral hearing if an agreement is likely to be reached; any settlement shall be recorded by the court in the court minutes. …’
16 Under Paragraph 167 of the ZPO:
‘If service is effected in order to comply with a deadline, or to have a limitation period begin anew or suspended pursuant to Paragraph 204 of the Bürgerliches Gesetzbuch (Civil Code, RGBl. 1896, p. 195), this effect shall commence upon receipt of the corresponding application or declaration provided that service is effected shortly thereafter.’
The Civil Code
17 Point 14 of Paragraph 204(1) of the Civil Code, in the version applicable to the facts in the main proceedings, provides:
‘The limitation period shall be suspended:
…
14. when service of the first application for legal aid is effected; if service is effected immediately after the application is submitted, the suspension of the limitation period shall take effect from the time of submission of the application.’
The dispute in the main proceedings and the question referred for a preliminary ruling
18 BC, who resides in Sweden and was a minor at the time of the facts in the main proceedings, is the son of LG, who resides in Germany.
19 On 17 December 2021, BC, represented by the Bundesamt für Justiz (Federal Office of Justice, Germany), submitted an application for legal aid to the Amtsgericht Schleswig (Local Court, Schleswig, Germany), which is the referring court, with the aim of subsequently submitting an application for variation of the maintenance obligations owed to him by LG. A draft of that application to vary those obligations was attached with an indication that it would be submitted in the event that the requested legal aid is granted.
20 On 28 January 2022, before the referring court had ruled on BC’s application for legal aid, LG brought an action before the Eskilstuna tingsrätt (District Court, Eskilstuna, Sweden) seeking variation of his maintenance obligations towards BC.
21 After his application for legal aid was granted on 27 May 2022, BC submitted the application to vary referred to in paragraph 19 above before the referring court. That application was served on LG on 21 July 2022.
22 In Sweden, the Eskilstuna tingsrätt (District Court, Eskilstuna) dismissed LG’s application on the ground that it did not have international jurisdiction. The Högsta domstolen (Supreme Court, Sweden) set aside that rejection decision and referred the case back to the Eskilstuna tingsrätt (District Court, Eskilstuna), which, by order of 6 May 2024, stayed the proceedings, pursuant to Article 12(1) of Regulation No 4/2009.
23 The referring court states, in essence, that it must determine whether it, and not the latter Swedish court, has international jurisdiction to hear the main proceedings as the ‘court first seised’ within the meaning of Article 12 of Regulation No 4/2009, read in conjunction with Article 9(a) thereof. That could be the case only if the application for legal aid, which was lodged by BC before LG brought the proceedings before the Swedish court, were to be regarded as an ‘equivalent document’ with regard to a document instituting the proceedings within the meaning of Article 9(a) of that regulation. National case-law and legal literature are divided in that regard.
24 In those circumstances, the Amtsgericht Schleswig (Local Court, Schleswig) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘Is an application for legal aid, to which an application to vary in a matter relating to maintenance obligations – which is intended to be formally submitted in the event that legal aid is granted – is attached only in draft form, an “equivalent document” within the meaning of Article 9(a) of [Regulation No 4/2009], with the result that a national court has been seised and the jurisdiction of that court established?’
Consideration of the question referred
25 By its question, the referring court asks, in essence, whether Article 9(a) of Regulation No 4/2009 is to be interpreted as meaning that an application for legal aid lodged with a court, to which the applicant has attached in draft form the application which he or she intends to submit on the merits in a matter relating to maintenance obligations in the event that the requested legal aid is granted, constitutes an ‘equivalent document’ within the meaning of that provision.
26 As a preliminary point, it should be noted, first, that the referring court states that, in the main proceedings between BC and LG concerning an application to vary the maintenance obligations owed by LG, it must decide whether it has international jurisdiction in a situation where a Swedish court has, in proceedings between LG and BC concerning an application for variation of those obligations, stayed its proceedings pursuant to Article 12(1) of Regulation No 4/2009.
27 That provision 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, of its own motion, to stay its proceedings until such time as the jurisdiction of the court first seised is established.
28 In the present case, it is apparent from the wording and the statement of reasons for the question referred that, in seeking to ascertain whether it, or the Swedish court which stayed its proceedings pursuant to that provision, was the court first seised in the light of the rule on jurisdiction laid down in Article 9(a) of Regulation No 4/2009, the referring court considers that there is a case of lis pendens between the dispute in the main proceedings and the dispute before that Swedish court, since those disputes between BC and LG concern whether LG’s maintenance obligations to BC must be varied.
29 Secondly, it must be borne in mind that, in so far as, in matters relating to maintenance obligations, the provisions of Regulation No 4/2009 relating to the rules on jurisdiction replaced those of Regulation No 44/2001, the Court’s case-law on the interpretation of the provisions of Regulation No 44/2001 also applies to the interpretation of those of Regulation No 4/2009 whenever those provisions may be regarded as ‘corresponding’ or ‘equivalent’ (see, to that effect, judgments of 18 December 2014, Sanders and Huber, C‑400/13 and C‑408/13, EU:C:2014:2461, paragraph 23, and of 6 June 2024, Geterfer, C‑381/23, EU:C:2024:467, paragraphs 23 and 24). The same is true of the Court’s case-law on the interpretation of the equivalent provisions of the Lugano II Convention and Regulations No 44/2001 and No 4/2009 (see, to that effect, judgment of 20 December 2017, Schlömp, C‑467/16, EU:C:2017:993, paragraphs 42 and 47).
30 The Court has already held that Article 12 of Regulation No 4/2009 is equivalent to Article 27 of Regulation No 44/2001 and Article 27 of the Lugano II Convention (see, to that effect, judgments of 20 December 2017, Schlömp, C‑467/16, EU:C:2017:993, paragraphs 44 and 46, and of 6 June 2024, Geterfer, C‑381/23, EU:C:2024:467, paragraph 26). Furthermore, the wording of Article 9(a) of Regulation No 4/2009 is almost identical to that of Article 30(1) of Regulation No 44/2001 and Article 30(1) of the Lugano II Convention (see, to that effect, judgment of 20 December 2017, Schlömp, C‑467/16, EU:C:2017:993, paragraphs 45 and 46).
31 In the light of those preliminary observations, it must be borne in mind that the lis pendens rule laid down in Article 12 of Regulation No 4/2009 is intended, in the interests of the proper administration of justice, as noted, inter alia, in recital 15 of that regulation, 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. The mechanism for resolving cases of lis pendens provided for in Article 12 is objective and automatic and is based on the chronological order in which the courts concerned were seised (see, to that effect, judgment of 6 June 2024, Geterfer, C‑381/23, EU:C:2024:467, paragraphs 27 and 29). Accordingly, the court before which one of the parties first initiated the dispute is regarded as having jurisdiction.
32 In that context, Article 9 of Regulation No 4/2009 sets out uniform and autonomous rules for determining the time when a court is deemed to have been seised for the purpose of applying Article 12 of that regulation, with the aim of reducing the risk of parallel proceedings taking place in different Member States (see, by analogy, judgments of 4 May 2017, HanseYachts, C‑29/16, EU:C:2017:343, paragraph 29, and of 20 December 2017, Schlömp, C‑467/16, EU:C:2017:993, paragraph 50). Article 9 of Regulation No 4/2009 is intended, inter alia, to obviate problems flowing from national differences as to the determination of the time when a case is regarded as pending, that time being defined autonomously. In addition, that article seeks to reduce the problems and legal uncertainties caused by the wide variety of arrangements which existed in the Member States for determining the time when a court is seised, by means of a substantive rule permitting the easy and standardised identification of that time (see, by analogy, judgment of 4 May 2017, HanseYachts, C‑29/16, EU:C:2017:343, paragraph 30).
33 Under Article 9(a) of Regulation No 4/2009, a court is seised at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the claimant has not subsequently failed to take the steps he or she was required to take to have service effected on the defendant. The referring court is uncertain as to the interpretation of that provision and, more specifically, the interpretation of the concept of ‘equivalent document’ referred to therein.
34 In that regard, it is settled case-law that provisions relating to the rules on jurisdiction, such as the one laid down in Article 9(a) of Regulation No 4/2009, must be interpreted not as a mere reference to the internal law of the Member States, but independently in the light of their wording by reference to the objectives and scheme of that regulation and to the general principles which stem from the corpus of the national legal systems (see, to that effect, judgment of 18 December 2014, Sanders and Huber, C‑400/13 and C‑408/13, EU:C:2014:2461, paragraphs 24 and 25 and the case-law cited, and, by analogy, judgment of 7 May 2020, Rina, C‑641/18, EU:C:2020:349, paragraph 30).
35 It is apparent from the wording of Article 9(a) of Regulation No 4/2009 that the concept of ‘equivalent document’ must be assessed in relation to that of ‘document instituting the proceedings’, although, according to its definition in everyday language, the term ‘equivalent’ means not that the equivalent document must be identical to the document instituting the proceedings, but that it must be a comparable document fulfilling the same function.
36 In matters relating to maintenance obligations covered by Regulation No 4/2009, the purpose of a document instituting the proceedings is to bring a dispute on the merits, in proceedings which are in principle inter partes, between one or more claimants and one or more defendants. It is also apparent from the condition at the end of Article 9(a) of Regulation No 4/2009 – according to which an applicant must not have failed, following the lodging of both the equivalent document and the document instituting the proceedings, to take the steps he or she was required to take to have service of the document concerned effected on the defendant – that the dispute must have been brought in inter partes proceedings.
37 It is also important to note, as stated in paragraph 31 above, that the lis pendens rules laid down in Article 12 of that regulation are intended to ensure compliance with the chronological order in which the courts were seised and, therefore, the choice of forum by the party who first initiated the dispute concerned.
38 In those circumstances, it must be held that, for the purposes of determining the court first seised in the case of lis pendens, the concept of an ‘equivalent document’ covers any document which is closely connected with the substance of the dispute concerned, such that it can be considered, in a manner comparable to a document instituting the proceedings, that that dispute has been brought, even if only partially or preliminarily, to enable an adversarial hearing between the parties to that dispute.
39 That said, it is not apparent from the wording of Article 9(a) of Regulation No 4/2009 that the concepts of ‘equivalent document’ and ‘document instituting the proceedings’ are mutually exclusive in that that provision would prevent an equivalent document and a document instituting the proceedings from being lodged successively under any circumstances. Since the term ‘equivalent’ does not mean ‘identical’, it cannot be excluded that an equivalent document could precede the document instituting the proceedings, provided that the elements of equivalence which allow it to be considered, as is apparent from the previous paragraph above, that the dispute has been brought are present, namely a close connection with the substance of the case and the existence of inter partes proceedings.
40 In that regard, the Court has already held that, where two successive sets of proceedings are independent and are clearly distinct from each other, the dispute cannot be deemed to have been initiated when the document instituting the first of those proceedings was lodged, and that act cannot therefore be classified as an ‘equivalent document’ within the meaning of Article 9(a) of Regulation No 4/2009 (see, to that effect, judgment of 4 May 2017, HanseYachts, C‑29/16, EU:C:2017:343, paragraph 35).
41 On the other hand, where two successive sets of proceedings are not independent and are not clearly distinct from each other, but those proceedings are closely linked on the merits, the objective of complying with the chronological order in which the courts concerned were seised and, therefore, the choice of forum by the party who initiated the dispute would not be achieved if it were acknowledged that, between the dates on which the same court of a Member State was seised of two successive sets of inter partes proceedings which are closely linked on the merits, the defendant may, by seising a court in another Member State, circumvent that choice by relying on the fact that he or she was informed, in the first of those two sets of proceedings, of the second intended proceedings on the merits.
42 In the present case, the referring court must determine whether the application for legal aid brought by BC before that court prior to the action brought by LG in Sweden may be classified as an ‘equivalent document’, within the meaning of Article 9(a) of Regulation No 4/2009, with regard to the document instituting the proceedings lodged by BC before that court after that court granted him the requested legal aid and after LG brought that action. In that regard, the Court, when giving a preliminary ruling on a reference, may give clarifications to guide the national court in its decision (judgment of 15 January 2026, bluechip, C‑822/24, EU:C:2026:13, paragraph 37 and the case-law cited).
43 Subject to verification by the referring court, it is apparent from the written observations of the German Government and the answers given by the German Government at the hearing, first, that, in accordance with Paragraph 117 of the ZPO, which is applicable mutatis mutandis to family proceedings such as those at issue in the main proceedings pursuant to Paragraph 113(1) of the Law on proceedings in family matters and in matters of non-contentious jurisdiction, in the version applicable to the dispute in the main proceedings, an applicant such as BC may apply to the court hearing the case for legal aid, setting out, in particular, the facts of the case and the evidence.
44 Secondly, given that, in accordance with Paragraph 114(1) of the ZPO, legal aid may be granted to an applicant such as BC only if the intended action presents a sufficient prospect of success and does not appear to be frivolous, the applicant must, in principle, attach to his or her application for legal aid a draft application or include the essential elements of the application he or she intends to submit in the event that the requested legal aid is granted, so as to enable the court seised to verify whether the conditions for granting such aid are satisfied.
45 Thirdly, it is apparent from Paragraph 118(1) of the ZPO that the defendant is to be given the opportunity to state his or her opinion on whether those conditions are satisfied, except where it would be inappropriate to do so for specific reasons, which means, as the German Government stated at the hearing, that the court seised must bring the application for legal aid to the attention of the defendant. That information is usually communicated in simple written form, without prejudice to the option for that court to effect service on that party.
46 Furthermore, as the referring court stated in its request for a preliminary ruling, it is apparent from the combined provisions of Paragraph 204 of the Civil Code, in the version applicable to the facts in the main proceedings, and from Paragraph 167 of the ZPO, that an application for legal aid served on a defendant has the effect of interrupting the limitation period from the date on which that application was submitted if service was effected immediately after that submission.
47 It appears from German law, as set out in paragraphs 43 to 46 above, that, unless there are specific reasons to the contrary, an application for legal aid containing, inter alia, the essential elements of the application that will be brought as to the substance in the event that the requested legal aid is granted must be brought to the attention of the defendant so that that party has the opportunity to comment on whether the intended action presents a sufficient prospect of success on the merits and does not appear to be frivolous.
48 It thus appears that, in German family law, the legal aid procedure is, in principle, a set of inter partes proceedings which is closely linked to the future inter partes proceedings on the merits, in that, first, it enables the defendant to know the claims and summary arguments which the applicant for legal aid intends to put forward on the merits and to adopt a position on that matter and, secondly, it enables the court seised to carry out a prima facie analysis of the substance with a view to deciding whether to grant the requested legal aid. Such a close link is further supported by the fact that the service of an application for legal aid has the effect of suspending the limitation period.
49 In those circumstances, it must be held, subject to verification by the referring court of the German law set out in paragraphs 43 to 46 above, that, in the German legal system, an application for legal aid lodged with a court could be classified as an ‘equivalent document’ within the meaning of Article 9(a) of Regulation No 4/2009.
50 However, in order to preserve the close link between the legal aid proceedings and the substantive proceedings, for the purpose of classifying an application for legal aid such as that at issue in the main proceedings as an ‘equivalent document’, it is still necessary, first, that the requested legal aid has been granted, secondly, that the main action be brought within a reasonable time after that aid is granted and, thirdly, that the content of that action corresponds, in essence, to the action resulting from the draft substantive application examined by the court during the legal aid proceedings.
51 At the hearing, the Commission highlighted the fact, which it is for the referring court to verify, that applications for legal aid such as that at issue in the main proceedings are usually communicated by the court seised to the defendant in simple written form, rather than being served on that party. In that regard, it is important to note that, although Article 9(a) in fine of Regulation No 4/2009 envisages only cases in which service of the equivalent document or the document instituting the proceedings must be effected, the obligation imposed on the applicant to take the measures necessary to ensure that service of the document concerned is effected is applicable mutatis mutandis to cases where that document is communicated in simple written form by the court seised. It follows that the fact that an application for legal aid is communicated to the defendant in simple written form does not, in itself, have any bearing on the classification of such an application as an ‘equivalent document’.
52 Nevertheless, as the German Government acknowledged at the hearing, that particular feature of German law may preclude such a classification where it transpires that the communication of the application for legal aid has not been received by the defendant and that the legal aid procedure has been deprived of its adversarial character without the defendant subsequently having any means to remedy the situation. It is for the referring court to verify that aspect where appropriate.
53 Lastly, the classification of an application for legal aid such as that at issue in the main proceedings as an ‘equivalent document’, within the meaning of Article 9(a) of Regulation No 4/2009, also takes account of the importance which that regulation attaches, for the purposes of ensuring effective access to justice, to the legal aid mechanism as an element which is both inseparable from disputes in matters relating to maintenance obligations and is indispensable for maintenance creditors who do not have sufficient resources to assert their rights. That is reflected in both Article 44 and Article 46 of that regulation, read in the light of recital 36 thereof.
54 In the light of the foregoing, the answer to the question referred is that Article 9(a) of Regulation No 4/2009 must be interpreted as meaning that an application for legal aid lodged with a court, to which the applicant has attached in draft form the application which he or she intends to submit on the merits in a matter relating to maintenance obligations in the event that the requested legal aid is granted, constitutes an ‘equivalent document’ within the meaning of that provision, where, in the course of the proceedings concerned, the defendant to whom that application for legal aid, including that draft application on the merits, is communicated has the opportunity to state his or her position on whether the main action presents a sufficient prospect of success and does not appear to be frivolous, and that action is brought within a reasonable period after the grant of that aid, in terms corresponding, in essence, to those resulting from that draft.
Costs
55 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 (Third Chamber) hereby rules:
Article 9(a) 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 an application for legal aid lodged with a court, to which the applicant has attached in draft form the application which he or she intends to submit on the merits in a matter relating to maintenance obligations in the event that the requested legal aid is granted, constitutes an ‘equivalent document’ within the meaning of that provision, where, in the course of the proceedings concerned, the defendant to whom that application for legal aid, including that draft application on the merits, is communicated has the opportunity to state his or her position on whether the main action presents a sufficient prospect of success and does not appear to be frivolous, and that action is brought within a reasonable period after the grant of that aid, in terms corresponding, in essence, to those resulting from that draft.
[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 party to the proceedings.