OGH; 2019-03-21; 6 Ob 49/19b
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2019:0060OB00049.19B.0321.000
Date: 2019-03-21
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82019AT0321(51)_ENG_SUMJURE
JURE summary
JURE summary
This judgment by the Oberste Gerichtshof (hereinafter ‘the Supreme Court’) concerns a declaration of enforceability of a foreign judgment.
Following their divorce, parents (hereinafter ‘the plaintiff’ and ‘the defendant’) agreed on the joint custody of their child. In June 2015, the defendant, the father of the child, filed an application with the Austrian Guardianship Court of First Instance seeking sole custody. Shortly after the application was filed, the mother of the child, the plaintiff, took the child and moved to Poland. In December 2015, the Guardianship Court of First Instance granted the defendant sole custody of the child. This was confirmed by the Guardianship Court of Appeal, which based the jurisdiction of the Austrian courts on Article 10 of the new Brussels II Regulation (1), since the plaintiff unlawfully intervened in the joint custody and wrongfully removed the child.
In April 2016, the child was living back in Austria after the defendant enforced the decisions of the guardianship courts and took the child from his mother in Poland. In June 2016, the plaintiff withdrew her application for the return of the child under the Hague Convention (2).
In January 2018, the district court in Częstochowa (Poland) decided that the place of residence of the child shall be with the plaintiff. The plaintiff subsequently applied to the Austrian Court of First Instance to declare the enforceability of this Polish judgment; the Court of First Instance granted the application and decided the child should be returned to Poland.
The defendant lodged an appeal with the Landesgericht Leoben (hereinafter ‘the Court of Appeal’). The Court of Appeal granted the appeal and dismissed the plaintiff’s application for a declaration of enforceability, citing Article 28(1) of the new Brussels II Regulation and pointing out that the Polish judgment had not been correctly served to the defendant.
The plaintiff appealed to the Supreme Court, which confirmed the findings concerning the jurisdiction of the Austrian courts pursuant to Article 10 of the new Brussels II Regulation. The Austrian jurisdiction specifically applied Article 10(b)(ii) of the new Brussels II Regulation, since the child had been living in Austria for more than a year. However, the Supreme Court recalled that pursuant to Article 24 of the new Brussels II Regulation, ‘The jurisdiction of the court of the Member State of origin may not be reviewed’, so this question cannot have any influence on the decision concerning the declaration of enforceability of the foreign judgment.
The Supreme Court further refused the findings of the Court of Appeal concerning the failure of service of the Polish judgment on the defendant, as it was proven that the defendant had had the judgment at his disposal for more than a month.
Finally, the Supreme Court held that the judgment which was sought to be enforced must in principle have enforceable content, but this does not apply to judgments on parental responsibility concerning a change of custody or on determining the place of residence of a child, such as in the present case. Therefore, the Supreme Court rejected the plaintiff’s application for a declaration of enforceability of the Polish decision.
(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.
(2) Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.