Oberster Gerichtshof, Urteil vom 02/05/2011 6 Ob 73/11w
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2011:0060OB00073.11W.0502.000
Date: 2011-05-02
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82011AT0502(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
After the court of origin had dismissed an application of the father for the return of his child to Spain from Austria, the Spanish court of first instance ordered the return of the child with reference to Article 11(8) of the Regulation (EC) No. 2201/2003 ("Brussels II bis"). A certificate according to Article 42 Brussels II bis Regulation that expressly stated that the judgment was not enforceable in the Member State of origin was attached to the judgment. After an unsuccessful first appeal, the father lodged a further appeal to the Oberste Gerichtshof (AT).
The Oberste Gerichtshof dismisses the appeal. An interpretation of Article 42(1) Brussels II bis Regulation to the effect that the judgment of the Member State of origin need only be factually enforceable, but that this fact need not be certified, and that it follows from the issue of the certification by the court of the Member State of origin per se that the judgment is enforceable in the Member State of origin - in particular, if the certificate itself expressly describes the judgment of the Member State of origin as not enforceable - is not viable. That a judgment may no longer be contested does not necessarily mean that it can be enforced.