Litigation in Matters of Child Support between the EU and Switzerland: Brussels or Lugano?

The Court of First Instance of Mytilene (Greece) ruled on 16 May 2024 on an application filed by the mother of child against the child’s father. Acting on behalf of the child, the mother requested injunctive relief for child support (judgment No 161/2024, published in the Thessaloniki Bar Rewiew ‘Armenopoulos’ 2025, pp. 1497 et seq.) .

The parents were Greek nationals and residents of Switzerland. The defendant did not challenge the Court’s jurisdiction. The Court considered that jurisdiction ought to be assessed based on the Lugano Convention of 30 October 2007 on jurisdiction and the recognition and enforcement of judgments, which applies inter alia to maintenance obligations. Referring to Article 2 and Article 5(2) of the Convention, it held that, in the circumstances, the Convention did not confer jurisdiction on Greek courts, since neither the defendant nor the child were domiciled in Greece. The Court accordingly dismissed the claim on jurisdictional grounds.

One interesting aspect of the case lies in the mother’s choice to bring the application before Greek courts, despite the fact that all parties to the case reside in Switzerland. The preference in favor of Greek courts may stem from her attorney’s strategy, having regard to the fact that the parties were Greek nationals, the cost of litigation in Greece is lower than in Switzerland, and the order sought would have been directly enforceable in Greece (where the defendant likely owned some assets), whereas a Swiss judgments would have required exequatur (a step that the Lugano Convention did not abolish).

The Court’s Reliance on the Lugano Convention, rather than the EU Maintenance Regulation

As observed above, the Court of Mytilene considered that the case came with the purview of the Lugano Convention. It observed, in this regard, that the Convention does not include the Greek nationality of the parties among the grounds  on which the jurisdiction of the Greek courts may be asserted.

The Court further observed, in an obiter dictum, that Regulation (EU) No 4/2009 on maintenance obligations was not applicable in the circumstances. It relied for this on the fact that the parties had their residence in Switzerland, but also invoked Article 69 the Regulation, pursuant to which the latter “shall not affect the application of bilateral or multilateral conventions and agreements to which one or more Member States are party at the time of adoption of this Regulation and which concern matters governed by this Regulation”.

Comment

The conclusion reached by the Court of Mytilene on the applicability of the Lugano Convention is convincing. The reasoning behind the conclusion, however, is unpersuasive. Arguably, Article 69 of the Regulation is of no avail here. The appropriate avenue is rather that of Article 64 of the Lugano Convention, which the judgment fails to consider.

According to Article 64(1), the Lugano Convention “shall not affect the application by the Member States of the European Community of Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters and any subsequent amendments thereto, of the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters (Brussels Convention), and of the Agreement between the European Community and the Kingdom of Denmark on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters”. The reference to Regulation No 44/2001 (the Brussels I Regulation) must now be read, as regards child support and family maintenance, as a reference to the Maintenance Regulation, consistent with Article 68 of the latter Regulation.

Article 64(2)(2) of the Lugano Convention is decisive on the matter in question. It provides that the Convention, rather than the Regulation, applies, “in matters of jurisdiction, where the defendant is domiciled in the territory of a State to which this Convention applies [such as Switzerland], with the exception of the acts referred to in paragraph 1, or where Articles 22 or 23 of this Convention confer jurisdiction on the courts of such a State”.

The explanatory report of the Lugano Convention drawn up by Fausto Pocar observes (at para 20), that the latter provision should be understood to mean that the “the Lugano Convention applies in certain cases, either by the courts of a State bound by both the Brussels I Regulation [i.e., the Maintenance Regulation] and the Lugano Convention or by the courts of a State bound only by the Lugano Convention. In matters of jurisdiction, the Lugano Convention will always be applied by the courts of any State bound by the Convention, including the courts of States bound by the Brussels I Regulation [i.e., the Maintenance Regulation], if the defendant is domiciled in the territory of a State to which the Convention but not the Regulation applies. The same applies where jurisdiction is conferred on the courts of such a State under Article 22 or 23 of the Convention, because these are cases of exclusive jurisdiction which must always be respected”.

Put differently: if the parties were residents in Austria or any EU Member State, the Maintenance Regulation would have applied. But since it is not disputed that the parties are resident in Switzerland, then Article 64(2) of the Convention sets EU legislation aside and brings the Convention back into play.

Under the first hypothetical scenario (the residence of the defendant or the child in Austria) the Court would have applied the Maintenance Regulation, and would have asserted its jurisdiction over the matter in accordance with Article 5 of the Regulation, that is, based on the appearance of the defendant.

A Different View and Some Feedback

It is appropriate to mention a different opinion on the issue, whereby the Maintenance Regulation is applicable in a Member State whenever the remedy was brought in an EU Member State [Kostkiewicz, Eichenberger, “International maintenance law in legal relations between Switzerland and the EU”, Comparative Law Review, 2015, p. 13 et seq., at p. 20-22].

Finally, in the text of the Practical Guide on the application of Regulation (EC) No 4/2009 on maintenance obligations (2023), prepared by Professor Costanza Honorati, and in consultation with the European Judicial Network in civil and commercial matters, it is noted that no request for a preliminary reference has been made at present on the matter in question (pp. 17 et seq.).