Oberster Gerichtshof, Beschluss vom 24/03/2010 3 Ob 12/10a
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2010:RS0125813
Date: 2010-03-24
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82010AT0324(02)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The claimant, domiciled in Austria, lodged a challenge against the defendant, domiciled in Poland, before the Bezirksgericht of Leopoldstadt (AT) opposing enforcement of a judgment on maintenance ordered on him in Warsaw (PL) that had been declared enforceable in Austria. The jurisdiction of the Polish court was based on Article 5(2) Brussels I Regulation. In his challenge, the claimant argued that part of the maintenance arrears claimed against him in Poland had already lapsed as a result of already effected payment, and that the current maintenance payments were calculated too high as a result of alterations in his economic capacity. The Bezirksgericht dismissed the claim. The appeal court allowed the claimant’s appeal, whereupon the defendant appealed to the OGH (AT).
The OGH finds the appeal to be partially with merit. On the basis of the purpose of Article 5(2) Brussels I Regulation not to compel those entitled to maintenance to file before the court competent for the defendant, although the court at the domicile or common residence of those entitled to maintenance would be best placed to determine the entitlement to maintenance, the claim opposing enforcement does not fall under Article 22(5) insofar as a new calculation of the maintenance amount is sought. Otherwise, the purpose of Article 5(2) would be undermined because new, claim-restricting circumstances are asserted, which do not have the requisite connection to the enforcement proceedings as required by Article 22(5), but instead are to be decided in proceedings for recognition. However, insofar as the cancellation of part of the amount is claimed in this case, international jurisdiction arises under Article 22(5). The appeal, therefore, is only partially sustained.