Oberster Gerichtshof, Urteil vom 18/09/2009 6 Ob 181/09z
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2009:0060OB00181.09Z.0918.000
Date: 2009-09-18
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82009AT0918(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
An under-age child who was born in March 1993 and his father brought an action before an Austrian court against the mother for removal of her custody over the child and for transfer of custody to the father. The Austrian courts held that they had international jurisdiction pursuant to Article 8(1) of the Regulation 2201/2003 "Brussels IIbis". The mother claimed that she had not consented to the illegal transfer of the child's residence from Spain to Austria, carried out by the father, wherefore pursuant to Article 10(a) Brussels IIbis Regulation the Spanish courts continue to hold jurisdiction.
The OGH (AT) holds that according to Article 10 Brussels IIbis Regulation in the case of the wrongful removal or retention of a child jurisdiction should as a principle remain with the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention. This provision takes priority over Article 8(1). The Brussels IIbis Regulation applies in cases of child abduction from one Member State to another Member State; regarding such cases, the Regulation incorporates the Hague Convention on Child Abduction of 1980, governs jurisdiction and modifies the return procedure. Therefore, to this extent the provisions of the Brussels IIbis Regulation are only applicable until a child has reached the age of sixteen. Since in the current case in view of the age of the child the Hague Convention on Child Abduction of 1980 is no longer applicable, it appears justified to hold that the Austrian courts have international jurisdiction pursuant to Article 8(1) without the question of the consent of the mother within the meaning of Article 10(a) being determinative.