JUDGMENT OF THE COURT 15 February 2017 CASE C-499/15: W, X and V

SUMMARY We are going to talk about the Judgment of the Court of Justice of 15 February 2017 (In Case C-499/15). It raíces the alternatives that are discussed by doctrine and praxis about the classical issue of modification or variation of the measures taken by judge in parental responsibility and maintenance matters. We are agree with the European court as to the solution granted in matters of international jurisdiction. That is that the courts of Member State which made a decision that has become final concerning parental responsibility and maintenance obligations with regard to a minor child no longer have jurisdiction to decide on an application for variation of the provisions ordered in that decision, to the extent that the habitual residence of the child is in another Member State. It’s the courts of the Member State of (current) habitual residence that have jurisdiction to decide on that application.

CONTEXTUALIZATION OF THE CASE The ruling concerns a preliminary ruling that a Lithuanian court raised with the European Court regarding international jurisdiction for the modification of a final judgment also pronounced in Lithuania. The case presents a family of a Lithuanian father, mother with dual Dutch and Argentine nationality and a minor son with dual citizenship (Lithuanian and Italian). They got married in the USA in 2003. The son was born in the Netherlands in 2006 The family lived in Holland, Italy and Canada between 2004 and 2010 The couple separated in 2010. Since 2011, mother and child have a habitual residence in the Netherlands. Since 2011, the father has a habitual residence in Lithuania.

JUDICIAL HISTORY The first divorce decree was pronounced in Canada in 2012, attributing custody of the child to the mother. This ruling had no effect either in Holland or in Lithuania. On October 8, 2013, the Vilna District Court pronounced the divorce decree between W and X, estimating that the child's residence had to be established with his mother in the Netherlands. A regime of visits was established for the father and the amount of the obligation of maintenance to his position. On January 28, 2014, the court of first instance of Overijssel (Netherlands), attributed sole custody of the child to the mother and sentenced the father to pay the mother and child. On October 31, 2014, the Court of First Instance of Overijssel denied recognition in Netherlands of part of the Lithuanian judgment. He only acknowledged the part relating to the right of access.  On February 2, 2015, in a proceeding initiated by W, the Lithuanian Court of Appeal denied the execution in Lithuania of the Dutch court's decision of 2014.

JUDICIAL BATTLE OF "W" IN LITHUANIA On August 28, 2014, W started a claim in the Vilnius District Court requesting that the place of residence of the minor V, the amount of the maintenance obligations and the visitation regime (established in the judgment of 2013) must be modified. On December 16, 2014, the Vilnius Court partially annulled the 2013 ruling and returned the matter for a new ruling to the Vilnius District Court. This court declared itself incompetent by informing W that he should go to the competent court of the Netherlands (place where the minor had habitual residence). The regional court annulled that decision and returned it to the District Court for a reopening. However, it decided to stay the proceedings and to refer a preliminary ruling to the European court.

PRELIMINARY RULING which Member State (the Republic of Lithuania or the Kingdom of the Netherlands) has jurisdiction to hear and determine an application for the changes to the place of residence, to the child maintenance amount and to the applicable contact arrangements in respect of the minor child, V, who is habitually resident in the Kingdom of the Netherlands?’

JURISDICTION First of all, the arguments proposed by W, should be rejected. He sued about the court’s jurisdiction, claiming that the Court has jurisdiction only to interpret the provisions of EU law and not to rule on the substance of the questions before the national courts. However, in the present case, the order for reference that the national court seeks guidance on how Regulation No 2201/2003 and Regulation 4/2009 should be interpreted. As a result of that, European Court has the jurisdiction to know about this case.

Interpretation The interpretation of the article 3 Regulation 4/2009 must be as meaning that the courts of the Member State which have adopted a decision that has become final concerning parental responsibility and maintenance obligations in respect of a minor child retain jurisdiction to rule on an application for amendment of the orders made in that decision, even though the child is habitually resident in the territory of another Member State. That jurisdiction must be determined in each specific case. And about the regulation 2201/2003 must be interpreted as meaning that the goal is the best interests of the child, thus, in this case the European Law states that the court with jurisdiction will be the close one to the child’s habitual residence.

Exception The regulation provides an exception in the case where a child moves and subject to certain conditions, for the courts of the Member State of the child’s former habitual residence to retain jurisdiction, or in the case when the holders of parental responsibility are in agreement, for the prorogation of the jurisdiction of the court which has jurisdiction to decide on an application for divorce.

So, W seeks the amendment of the provisions of decision concerning parental responsibility and maintenance obligations in respect of child V. The referring court states, in that regard, that that decision was confirmed by a decision of the Vilniaus apygardos teismas (Regional Court, Vilnius) of 30 May 2014 and that the appeal lodged against that decision by W was dismissed by decision of 8 September 2014 of the Lietuvos Aukščiausiasis Teismas (Supreme Court, Lithuania).   Thus, the determination of a child’s habitual residence in a given Member State requires at least that the child has been physically present in that Member State. In this case, there isn’t information about that, so we think that V has never been to Lithuania and because of that, Lithuania can be the place to apply. In the present case, the courts thus designated by the referring court are the Netherlands courts.