BGH; 2018-11-14; XII ZB 292/16
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2018:141118BXII292.16.0
Date: 2018-11-14
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82018DE1114(51)_ENG_SUMJURE
JURE summary
JURE summary
The Syrian national born on 1 January 1994 (hereinafter ‘the plaintiff’) applied for a settlement of rights of access between him and his cousin born on 1 January 2001, who was also his partner (hereinafter ‘the person concerned’).
On 10 February 2015, the plaintiff validly entered into a marriage with the person concerned before a Sharia Court in Syria. Due to the war in the country, both fled to Germany. On 10 September 2015, the person concerned was taken into the care of the Youth Welfare Office, separated from the plaintiff and transferred to a youth welfare institution for female underage unaccompanied refugees.
The Amtsgericht Aschaffenburg (hereinafter ‘the Court of First Instance’) ruled that the person concerned had the right to spend every weekend from Friday 5 p.m. to Sunday 5 p.m. with the plaintiff.
The Oberlandesgericht Bamberg (hereinafter ‘the Court of Appeal’) dismissed the appeal lodged against this decision by the guardian of the person concerned (Stadtjugendamt Aschaffenburg – Aschaffenburg City Youth Office). At the same time, it ex officio overturned the decision of the Court of First Instance.
The legal complaint lodged before the Bundesgerichtshof (hereinafter ‘the Supreme Court’) by the guardian of the person concerned aimed to regulate the contact between the plaintiff and the person concerned, specifically once a week between 2 p.m. and 5 p.m. in the company of a third party.
The international jurisdiction of the German courts was clear (Article 1(1)(b), Article 1(2)(a) and Article 8(1) of the new Brussels II Regulation (1)). The decision in the present case is based on the interpretation of Article 13(3)(1) of the EGBGB (2) and its compliance with the fundamental principles of the rule of law. Exceptions in the transitional provision of Article 229 § 44(4) (3) of the EGBGB must also be observed.
The purpose of the provision was to create clear rules for the protection of the best interests of the child in dealing with marriages of minor foreign nationals under the German legal system. These rules were perceived as unsatisfactory with regard to the increasing entry of refugees.
Article 13(3)(1) of the EGBGB is a special regulation of the public policy and an examination of the public policy in the specific individual case under the consideration of the well-being of the child concerned is accordingly excluded. The wording of the provision is unambiguous and without exception it is considered that such marriages are ineffective. These marriages have no legal effect.
The person concerned was only 14 years old when the marriage was concluded (she was not 16 years old) and was not born before 22 July 1999. From this point of view, the legal complaint of the guardian of the person concerned would be well-founded and would also be successful.
However, the Senate of the Supreme Court is of the opinion that, subject to the exceptions of Article 229 § 44(4) and Article 13(3)(1) of the EGBGB is incompatible with Article 1 (the inviolability of human dignity), Article 2(1) (the right to the free development of one's personality), Article 3(1) (the equality of persons before the law) and Article 6(1) (the special protection of marriage and family) of the Grundgesetzes (German Basic Law).
The proceedings were suspended, and a decision was requested from the Federal Constitutional Court regarding the compliance of Article 13(3)(1) of the EGBGB with the four principles of the German Basic Law mentioned in the previous paragraph.
(1) Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000.
(2)  Einführungsgesetzes zum Bürgerlichen Gesetzbuch (Introductory Act to the German Civil Code): ‘If the marriage of a fiancé is subject to foreign law in accordance with paragraph 1, the marriage shall be invalid under German law if the fiancé had not reached the age of 16 at the time of the marriage.’
(3) The relevant Article 13(3)(1) paragraph 3 point 1 of the EGBGB does not apply if the minor spouse was born before 22 July 1999.