Bundesgerichtshof; 2019-11-27; Eltern; BGH XII ZB 311/19
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2019:271119BXIIZB311.19.0
Date: 2019-11-27
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82019DE1127(51)_ENG_SUMJURE
JURE summary
JURE summary
A father living in Germany (hereinafter ‘the plaintiff’) applied for the issuance of a fine against the mother of his son who lived with the son in Ireland (hereinafter ‘the defendant’) in order to enforce his rights of access.
The basis for the claim was the resolution of the Amtsgerichts Freiburg (Breisgau) (hereinafter ‘the Court of First Instance’) which provided for the access of the father to his son once per week for half an hour through Skype or similar means under threat of a fine or custody for contempt of court. The plaintiff claimed to have been enabled access only insufficiently, and later denied any contact.
The Court of First Instance dismissed the application of the plaintiff stating that the defendant and the child did not live in the area the court was competent for.
Upon the immediate appeal of the plaintiff, the Oberlandesgericht Karlsruhe (hereinafter ‘the Court of Appeal’) annulled the decision of the Court of First Instance and referred the case back to the Court of First Instance for a new decision regarding the application.
The defendant filed a revision with the Bundesgerichtshof (hereinafter ‘the Supreme Court’), which was found admissible, but was not successful.
The Court of Appeal was correct to state that the German courts held international jurisdiction for the enforcement proceedings in question under Article 99(1) of the FamFG (1). The Court of Appeal was further correct to state that there were no other superior laws for the determination of international jurisdiction, in particular not the new Brussels II Regulation (2).
The enforcement of a decision covered by the Regulation is not limited to the Member State where the obliged person lives. The opinion that provisions of the new Brussels II Regulation regarding jurisdiction do not apply to the enforcement of a decision is in accordance with a decision of the Court of Justice of the European Union (3) which dealt with rights of access of a father to his two children living with the mother in Finland.
The Court of First Instance held international jurisdiction regarding the determination of a fine for the purpose of the enforcement of a German decision regarding rights of access even if the son had his habitual residence in Ireland.
The Supreme Court dismissed the defendant's revision against the decision of the Court of Appeal.
(1) Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit (Act on proceedings in family matters and in matters of non-contentious jurisdiction).
(2) 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.
(3)  Judgment of the Court of Justice of 9 September 2015, Christophe Bohez v Ingrid Wiertzm, C-4/14, ECLI:EU:C:2015:563.