Oberster Gerichtshof, Urteil vom 15/03/2005 1 Ob 4/05b
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2005:RS0119820
Date: 2005-03-15
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82005AT0315(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The minor applicant lives with his mother in Austria. The last known domicile of the father was in Germany. In 2000, the father undertook in an authentic instrument, which was registered by the competent German authority, to pay maintenance. For the determination of the amount of maintenance payments, the deed referred to the German rules on the calculation of maintenance. The father, whose whereabouts were unknown, failed to pay. Thus, the applicant applied in Austria for the grant of a maintenance advance payment. The Bezirksgericht and on appeal the Landesgericht of Linz (AT) dismissed the application on the ground that Para. 3(1) of the Austrian Advance Payment of Maintenance Act (UVG) required the existence of a maintenance title which is domestically enforceable in order to make such payment. However, the applicant had failed to obtain an Austrian declaration of enforceability of the maintenance obligation undertaken by the father.
On an appeal by the applicant, the OGH (AT) overrules the decisions by the lower courts. It holds that according to Article 26 of the Brussels Convention, which is applicable in this case, only judgments can be recognized in other Contracting States without any special procedure being required. This does not apply to authentic instruments within the meaning of Article 50 Brussels Convention. However, in view of the Brussels Convention’s objective to facilitate cross-border legal relations, Para. 3(1) UVG has to be interpreted as meaning that an obligation to pay maintenance undertaken in a German authentic instrument is sufficient in order to grant a maintenance advance payment. When determining the amount of maintenance awarded in the foreign maintenance title, a strict examination of determinability has to be avoided. It is sufficient that the specific amount of maintenance can be calculated on the basis of the indications in the title, and of the German provisions, to which ancillary reference is to be made.