Oberster Gerichtshof; 2016-08-17; 8 Ob 80/16x
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2016:0080OB00080.16X.0817.000
Date: 2016-08-17
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82016AT0817(51)_ENG_SUMJURE
JURE summary
JURE summary
An Austrian plaintiff initiated divorce proceedings including maintenance claims in India as her permanent residence. Hereupon, her spouse, the defendant filed for divorce in Austria as his permanent residence whereupon the plaintiff brought an action of maintenance in the form of an action by stages. According to the defendant’s plea, the maintenance action should be rejected due to lack of international competence and the pending international dispute. The Court of first instance rejected the defendant’s plea and the Court of Appeal upheld this decision. However, the revision to the appeal is admissible.
The lower courts deal with the interpretation of the provisions of Article 12 of Council Regulation (EC) No 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations It is debatable whether the application of the scheme of the pendency of law in Article 12 of Regulation (EC) No 4/2009 is excluded by a negative forecast for the recognition of a foreign maintenance title (divorce proceedings in India) as, relating to the matter, the proceedings were pending in India already. According to the Court of Appeal, Supreme Court case law does not exist yet.
The defendant and the Court of Appeal consider that the interpretation of a forecast of recognition is a significant question of law, which constitutes a reason for the appeal. However, plaintiff claimed that no significant legal question was put forward.
The Supreme Court of Justice - Oberster Gerichtshof (hereinafter “OGH”) did not share the Court of Appeals’ view that the interpretation of a recognition forecasting was a decision-relevant significant legal question within the meaning of § 528(1) of the Code of civil procedure and that there was reason for the appeal.
As the OGH suggests by its decision, the plaintiffs or defendants must show a substantial question of law. But in this case, the defendant contends only reasons such as the handling of, which does not depend on a significant issue. Thus, the appeal must be rejected, regardless of the statement of admissibility (see resolution 8 Ob 111/14b).
Apart from this, there is extensive case-law for the interpretation of Article 27 of Regulation (EC) No 44/2001, Article 29 of Regulation (EU) No 1215/2012 and Article 19 of Regulation (EC) No 2201/2003, which are very similar to Article 12 of Regulation (EC) No 4/2009 in terms of content.
The OGH decided that the defendant’s appeal must be rejected due to the lack of demonstration of a substantial question of law.