Oberster Gerichtshof, Urteil vom 13/10/2009 5 Ob 173/09s
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2009:RS0125592
Date: 2009-10-13
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82009AT1013(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The parties are the parents of four children, who were granted Austrian nationality, and over whom the parents hold joint custody. The applicant left Germany and moved to Austria with the children, where they have since being resident. The respondent had not consented to the children living permanently in Austria. He made an application for their return under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, which was granted. The applicant applied to an Austrian court for the sole right of custody over all the minors. The respondent raised a plea of lack of jurisdiction, which was, however, dismissed. After an unsuccessful first appeal, the respondent lodged an appeal to the Oberste Gerichtshof (AT).
The Oberste Gerichtshof grants the appeal. The court of second instance applied Article 10 of the Regulation (EC) No. 2201/2003 “Brussels II bis” incorrectly. The matter falls within its substantive scope pursuant to Article 1(1)(b) in conjunction with Article 1(2)(a) Brussels II bis Regulation. Article 8 provides the principle that general jurisdiction is held by the courts of the Member State in which the child is habitually resident at the time the court is seised. However, this is restricted by Paragraph 2. Accordingly, Article 10, which governs jurisdiction in cases of child abduction, must also be applied. However, none of  the conditions contained therein are met. The same is true of Article 12(3). While the conditions of Article 12(3) are met, the acceptance of all the parties to the proceedings is required in addition, as mandated by paragraph (b) of this provision. Jurisdiction under Article 12(1) also requires acceptance of the jurisdiction. Thus, the Austrian courts lack jurisdiction.