Oberster Gerichtshof; 2016-02-17; 3 Ob 221/15v
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2016:0030OB00221.15V.0217.000
Date: 2016-02-17
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82016AT0217(51)_ENG_SUMJURE
JURE summary
JURE summary
An applicant from Austria applied for the issuance of the European order for payment for detective agency fees. The findings of the detective agency confirmed an extramarital relationship of her German husband in Manila, Philippines, which consequently resulted in the initiation of divorce proceedings. Her husband, as the defendant, objected to the order for payment. The court of origin dismissed the action on grounds of lack of international jurisdiction. Similarly, the appellate court did not comply with the applicant's appeal and allowed the appeal on a point of law.
Just as the court of origin, the court of appeal also rejected the subsumption of the claim sued for under exemption referred to in Article 1(2)(a) of Council Regulation (EC) No 44/2001 of 22.12. 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters ("Brussels I Regulation"). Please note that the Brussels I Regulation was only valid until 09.01.2015.
Within the meaning of Article 1(2)(a), the Brussels I Regulation shall not apply to "the status or legal capacity of natural persons, rights in property arising out of a matrimonial relationship, wills and succession".
The previous instances have not regarded the detective agency fee (a claim for damages) to fall under rights in property arising out of a matrimonial relationship, and therefore, the Brussels I Regulation should be applied.
However, the applicant alleged in the appeal on a point of law that the asserted claim is an infringement of marital duties and obligations. This presupposes the existence of a marriage between the parties and it means that the claim may only arise within a marriage, which is why it should fall under matrimonial property. Thus, the international jurisdiction as laid down in Section 99 of the Austrian Law on Jurisdiction is given. The defendant is a co-owner of a property located in Austria.
According to the Austrian Supreme Court (Oberster Gerichtshof, OHG), the applicant´s claim refers to the defendant's breach of trust, which is an obligation imposed on him under the marriage contract.
Therefore, the claim is subject to the definition of rights in property arising out of a matrimonial relationship referred to in Article 1(2)(a) of the Brussels I Regulation so that the Brussels I Regulation does not apply here. Article 3(1) of the Brussels I Regulation does not apply here either and thus, the international jurisdiction is established in accordance with Section 99 of the Austrian Law on Jurisdiction (place of jurisdiction based on property rights).
The OGH confirmed that this case is to be subsumed under Article 1(2)(a) of the Brussels I Regulation. The OGH based its judgment on the interpretation of the concept of "rights in property arising out of a matrimonial relationship" by the Court of Justice of the European Union: basically all property relationships between the spouses directly arising out of a marriage or dissolution of a marriage and all property relationships between the spouses which are closely related to this kind of matters or relationships. This applies not only to property in the proper sense of the word but also to any other property relationship arising out of a marriage or dissolution of a marriage.
The OGH decided that the judgments of the previous instances shall be altered and the court of origin shall initiate legal proceedings concerning the action while refraining from the previous ground for refusal.