Acción de regreso alimenticio y competencia judicial internacional: un nuevo paso en la progresiva delimitación del art. 3 del Reglamento 4/2009, de alimentos(Sentencia del Tribunal de Justicia de 17 septiembre 2020, as. C- 540/19)

Resumo

In its recent judgment of 17 September 2020, the ECJ held that: «A public body which seeks to recover, by way of an action for recovery, sums paid in place of maintenance to a maintenance creditor, and to which the claims of that maintenance creditor against the maintenance debtor have been transferred by way of subrogation, may validly invoke the jurisdiction of the court for the place where the creditor is habitually resident, as provided in Article 3(b) 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». Some years ago, in 2004, on a very similar case, judged under the Brussels Convention, the ECJ had held that: «Article 5(2) of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, as amended by the Convention of 9 October 1978 on the accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland, by the Convention of 25 October 1982 on the accession of the Hellenic Republic and by the Convention of 26 May 1989 on the accession of the Kingdom of Spain and the Portuguese Republic must be interpreted as meaning that it cannot be relied on by a public body which seeks, in an action for recovery, reimbursement of sums paid under public law by way of an education grant to a maintenance creditor, to whose rights it is subrogated against the maintenance debtor». This comment agrees with the new judgment and only discusses the way the ECJ try to justify the change of jurisprudence. Furthermore, it points out the need of clarifying the notion of «action for recovery» covered by the scope of the Regulation 4/2009.