OLG Karlsruhe; 2020-08-10; 16 UF 39/19
Decision by national courts in the field of European Union law — ECLI:DE:OLGKARL:2020:0810.16UF39.19.0A
Date: 2020-08-10
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82020DE0810(51)_ENG_SUMJURE
JURE summary
JURE summary
The case concerned a dispute between a father living in Germany (hereinafter the ‘plaintiff’) and a mother living in Bulgaria (hereinafter ‘the defendant’).
The family matters senate at the Oberlandesgericht Karlsruhe (hereinafter ‘the Court of Appeal’) declared its lack of jurisdiction after the mother, who had custody rights regarding the child, moved with the child to Bulgaria, and cancelled the first decision after the jurisdiction of a Bulgarian court had been established.
The plaintiff filed an application with the Amtsgericht Baden-Baden (hereinafter ‘Court of First Instance 1’) demanding that the ordered rights of access be changed. By a resolution of 10 January 2019, the Court of First Instance 1 modified the plaintiff’s rights of access to his son. The plaintiff lodged an appeal against the decision with the Court of Appeal.
Subsequently, the defendant moved with the son to Bulgaria. The Court of Appeal stayed the proceedings and requested both parents to approach a competent court in Bulgaria (hereinafter ‘Court of First Instance 2’) under Article 15(4) of the new Brussels II Regulation (1) to make a decision regarding the rights of access under the jurisdiction of the Bulgarian court.
The defendant filed an application with the Court of First Instance 2 regarding the determination of the father’s rights of access to the child and also applied that the Court of Appeal should declare its lack of jurisdiction. The plaintiff expressed the opinion that the proceedings should be continued in the Court of Appeal.
Under Article 15 of the new Brussels II Regulation, a court of a Member State which holds jurisdiction as to the substance of the matter may, under certain conditions, by way of exception, stay the case in question and invite the parties to introduce a request before the court of other Member State under Article 15(1)(a) of the new Brussels II Regulation in connection with Article 15(4) of the new Brussels II Regulation. The Court of Appeal concluded that the conditions were met in this case. The Court of First Instance 2 declared its jurisdiction by accepting the application and assigning a file number thereto.
For these reasons, the Court of Appeal declared its lack of jurisdiction to determine the father’s rights of access to the child. It annulled the resolution of the Court of First Instance 1 from 10th January 2019, which was the substance of the appellate proceedings.
(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.