Oberster Gerichtshof, Beschluss vom 20/04/2010 4 Ob 58/10y
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2010:0040OB00058.10Y.0420.000
Date: 2010-04-20
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82010AT0420(01)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The applicant applied to an Austrian court for the recognition and a declaration of enforceability of a judgment of the youth court of Venice (IT) that ordered the return of his child to Italy and in relation to which the court of origin had issued a certificate under Article 42(2) Brussels II bis Regulation. Parental custody was held jointly by the parents. After the mother had left the family home, the youth court of Venice (IT), upon the father’s application, ordered the mother not to leave Italy. However, the mother moved with the child to Austria. An application for a declaration of enforceability was refused at the first instance. The applicant lodged an appeal against the decision, which was granted. The respondent lodged an appeal to the Oberste Gerichtshof (AT) and argued that there has been an important change to her advantage in the facts upon which the judgment was based.
After referring several questions on the interpretation of several provisions of the Brussels II bis Regulation, the Oberste Gerichtshof dismisses the appeal. According to the preliminary ruling of the ECJ (1 July 2010 C-211/10 PPU), the powers of the Austrian courts are restricted to determining the arrangements for the return. The mother may only plead a change of circumstances before the youth court of Venice, and it alone may grant an application to suspend the judgment. Thus, the ECJ rejected an analogy to Article 23 of the Regulation (EC) No. 805/2004, which had been considered by the Senate. This analogy would have enabled the Austrian courts to stay the enforcement pending the outcome of the mother’s appeal before the youth court of Venice. The judgment of the youth court of Venice must therefore be enforced without any further review as to its substance. The task of the court before which enforcement is sought is restricted to determining the specific measures of enforcement.