Oberster Gerichtshof, Urteil vom 23/10/2007 3 Ob 213/07f
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2007:RS0122816
Date: 2007-10-23
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82007AT1023(52)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
A father was granted access to his minor son. The mother applied on 31 October 2006 before the Bezirksgericht of Linz (AT) for suspension of the access. At the time of the application, the child was habitually resident in Austria. The mother subsequently relocated with her son to Germany, where they have lived since 1 November 2006. The father remained in Austria. On 11 January 2007 the mother applied to the court to transfer jurisdiction to a German family court on the grounds of change in domicile. This application was rejected by the court of first instance. The court of second instance also dismissed the application and refused to grant an ordinary appeal. The mother, in an extraordinary appeal, argued that the courts of prior instance had not heeded Article 9 Regulation 2201/2003 "Brussels II bis".
The OGH (AT) holds, inter alia, that Article 8 Regulation 2201/2003 "Brussels II bis" refers to the habitual residence of the child at the point in time when the application was made. A later, lawful relocation to another Member State does not affect jurisdiction. The jurisdiction of the Austrian courts continues, despite the relocation to Germany, as the child still had its habitual residence in Austria on the 31 October 2006. Article 9(1) Regulation 2201/2003 "Brussels II bis" requires a judgment on access, given before the relocation, by a court in the previous country of residence of the child. Article 9(1) is not, however, applicable to judgments passed due to the principle of perpetuatio fori. In the current case, the proceedings in Austria concerning right of access were not concluded. Therefore Article 9 Regulation 2201/2003 "Brussels II bis" is not applicable.