Oberster Gerichtshof, Urteil vom 09/04/2002 4 Ob 7/02m
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2002:RS0116286
Date: 2002-04-09
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82002AT0409(03)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The parties are a divorced couple. The husband was ordered to pay maintenance to his wife in a legally binding judgment of the Oberlandesgericht of Hamm (DE). The wife now lives in Austria. She is seeking the enforcement of the judgment against the bank account of the husband at a German bank. The husband brought an action before the Bezirksgericht of Villach (AT), the competent court at the domicile of the wife, for the amendment of the German judgment concerning maintenance obligations. He claimed that the wife had been living for several years in a de facto relationship with a partner, and, therefore, was no longer in need of maintenance. The wife challenged the international jurisdiction of the court. According to Austrian law, the matter concerned a challenge to enforcement proceedings. Therefore, the German court before which the proceedings for the enforcement of the judgment in relation to maintenance were pending had exclusive jurisdiction pursuant to Article 16(5) Brussels Convention. The husband lodged an appeal to the OGH (AT) after the action was dismissed in the first instance.
The OGH overturns the decision. It states that the amendment of a judgment concerning maintenance is not solely subject to the courts of the State in which it was issued. Instead, jurisdiction is determined, depending on whether the beneficiary or the party obligated to pay maintenance has made the application, according to Articles 2, 5(2) Brussels Convention. As the husband brought the action under the jurisdiction provided in Article 2 before the court competent at the domicile of the wife, this court is competent.
Jurisdiction is not excluded by Article 16(5) Brussels Convention. The exclusive jurisdiction of Article 16(5), which is to be independently and narrowly construed, applies to all proceedings which directly concern enforcement measures. Proceedings aimed at the amendment of a judgment concerning maintenance do not fall under this category.