Case C‑83/17

KP

v

LO

(Request for a preliminary ruling from the Oberster Gerichtshof)

(Reference for a preliminary ruling — Judicial cooperation in civil matters — 2007 Hague Protocol — Law applicable to maintenance obligations — Article 4(2) — Change in the habitual residence of the creditor — Possibility of the retroactive application of the law of the State of the creditor’s new habitual residence, that law coinciding with the law of the forum — Scope of the terms ‘if the creditor is unable … to obtain maintenance from the debtor’ — Situation where the creditor does not satisfy a formal legislative condition)

Summary — Judgment of the Court (Sixth Chamber), 7 June 2018

1. Questions referred for a preliminary ruling—Jurisdiction of the Court—Scope—Hague Protocol on the Law Applicable to Maintenance Obligations—Included

   (Art. 267 TFEU; Hague Protocol of 23 November 2007)

2. Judicial cooperation in civil matters—Jurisdiction, applicable law, recognition and enforcement of decisions in matters relating to maintenance obligations—Hague Protocol on the Law Applicable to Maintenance Obligations—Special rules favouring certain creditors—Creditor unable to obtain maintenance under the law of the State of his habitual residence—Application of the law of the forum at the request of that creditor also in respect of the period prior to the change of his habitual residence—Conditions

   (Hague Protocol of 23 November 2007, Art. 4(2))

3. Judicial cooperation in civil matters—Jurisdiction, applicable law, recognition and enforcement of decisions in matters relating to maintenance obligations—Hague Protocol on the Law Applicable to Maintenance Obligations—Special rules favouring certain creditors—Creditor unable to obtain maintenance under the law of the State of his habitual residence—Meaning—Creditor who does not meet certain conditions imposed by the law of his State of habitual residence for the purpose of obtaining maintenance—Included

   (Hague Protocol of 23 November 2007, Art. 4(2))

1.  See the text of the decision.

   (see paras 21-25)

2.  Article 4(2) of the Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations, approved on behalf of the European Community by Council Decision 2009/941/EC of 30 November 2009 must be interpreted as meaning that:

   –

   the fact that the State of the forum corresponds to the State of the creditor’s habitual residence does not preclude the application of that provision as long as the law designated by the ancillary connecting rule in that provision does not coincide with the law designated by the main connecting rule in Article 3 of that Protocol;

   –

   in a situation in which the maintenance creditor, who has changed his habitual residence, has brought before the courts of the State of his new habitual residence a maintenance claim against the debtor in respect of a period in the past during which the creditor resided in another Member State, the law of the forum, which is also the law of the State of the creditor’s new habitual residence, can apply provided the courts of the Member State of the forum had jurisdiction to adjudicate on the disputes concerning those parties as to the maintenance relating to that period. As is apparent from Article 4(2) of the Hague Protocol, that provision, which makes it possible to apply the law of the forum instead of the law of the State of the maintenance creditor’s habitual residence, takes effect only if those laws are different from one another. It follows that in a situation such as that at issue in the main proceedings, in which the law of the forum (in the present case Austrian law) does not coincide with the law of the State of the creditor’s habitual residence in respect of the period for which the creditor is claiming maintenance (German law in this instance), Article 4(2) of the Hague Protocol may have practical effect. However, it is also necessary that the law of the forum, as referred to in that provision, can be applied regarding a maintenance claim relating to a period in the past. In this connection, it should be noted that it is not possible to establish beyond doubt the scope of Article 4(2) of the Hague Protocol merely from the wording of that provision. It must be interpreted taking account of the system of connecting rules established by the Hague Protocol and the objective of that Protocol. As regards the system of connecting rules established by the Hague Protocol, it must be observed that Article 4(2) thereof contains a special rule to the advantage of certain creditors which completes the general rule in Article 3 thereof. Moreover, as is apparent inter alia from the Bonomi report and the objectives pursued by the Commission, which participated actively in the negotiations leading to the adoption of the Hague Protocol (see the Proposal for a Council Regulation on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations [COM (2005) 649]), that system seeks to guarantee the predictability of the applicable law by ensuring that the law designated is not devoid of a sufficient connection to the family situation at issue. Given the system of connecting rules laid down in the Hague Protocol and that protocol’s objective of predictability, as described in paragraph 41 above, it must be held that, if the application of the law of the forum provided for in the alternative in Article 4(2) of the Hague Protocol resulted merely from the choice by the creditor of his new habitual residence without there being any connection between that law and the family situation of the creditor and the debtor concerned by the maintenance obligation as it was at the time to which that obligation relates, the application of that law would not be consistent with either that system or that objective.

   (see paras 29, 33, 34, 37-39, 41, 46, 51, operative part 1)

3.  The phrase ‘is unable … to obtain maintenance’ in Article 4(2) of the Hague Protocol of 23 November 2007 must be interpreted as also covering the situation in which the creditor is unable to obtain maintenance under the law of the State of his previous habitual residence on the ground that he does not meet certain conditions imposed by that law.

   (see para. 59, operative part 2)