OLG München; 2014-10-20; 12 UF 1383/14
Decision by national courts in the field of European Union law — ECLI:DE:OLGMUEN:2014:1020.12UF1383.14.0A
Date: 2014-10-20
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82014DE1020(51)_ENG_SUMJURE
JURE summary
JURE summary
The case decided by the Oberlandesgericht München (hereinafter ‘the Court of Appeal’) concerned the eligibility of the enforcement of a Belgian judgment and the necessity of hearing a child.
The subject-matter of the case was a dispute between a plaintiff living in Germany and a defendant living in Belgium. The plaintiff and the defendant were parents of their joint children M., Th. and M. The parents lived together from 2005 to October 2010 in Belgium. Having knowledge of the father’s intended move to Germany after their separation, the plaintiff filed an application with the Youth Welfare Office in Brussels requesting that the main residence of the children be determined with her.
On 4 June 2014, the appellate court in Brussels modified the decision of the Youth Welfare Office. Subsequently, the plaintiff filed another application with the Amtsgericht Miesbach (Disctrict Court Miesbach). After hearing the parties and children, the Amtsgericht Miesbach decided with its judgment of 2 September to preliminarily transfer the right to determine the place of residence of the children to the plaintiff. Based on the application of the defendant, the Amtsgericht München (hereinafter ‘the Court of First Instance’) recognized the appellate judgment of 4 June 2014 and declared the decision enforceable. The plaintiff lodged a revision against this judgment.
The claim of the plaintiff that the Belgian judgment could not be declared enforceable under Article 31 of the new Brussels II Regulation (1) was found to be correct. Under Article 23(b) of the new Brussels II Regulation, a child must be given the opportunity to be heard. The wording and recital 19 of the new Brussels II Regulation stipulate clearly that national law of the recognizing Member State is applicable when hearing a child. In Belgium, the child was neither heard by a Belgian court of first instance or an appellate court in person. From the German perspective, the proceedings had been violated in a substantial manner, preventing the judgment to be declared enforceable.
The Amtsgericht Miesbach held international jurisdiction due to the fact that the children had their habitual residence within its district. With regard to the jurisdiction under Article 8 of the new Brussels II Regulation and the necessity to modify a foreign decision in matters relating to custody rights in the best interests of the child due to the change in circumstances, if possible, the posteriority principle is applicable, so that a preliminary decision of a German court of 2 September 2014 was in conflict with the eligibility of the Belgian decision of 4 June to be recognized.
The Court of Appeal annulled the decision of the Court of First Instance and dismissed the application of the defendant which sought that the decision of the appellate court in Brussels of 4 June 2014 be recognized and declared enforceable.
(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.