Oberster Gerichtshof; 2023-11-17; 8 Ob 108/22y
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2023:0080OB00108.22Y.1117.000
Date: 2023-11-17
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82023AT1117(51)_ENG_SUMJURE
JURE summary
JURE summary
A father living in Vienna (hereinafter ‘the plaintiff’) applied to be entrusted with sole custody of his son, who was living with his mother (hereinafter ‘the defendant’), who had sole custody and lived in Graz.
The plaintiff was entitled to a regulated right of contact and was allowed to pick up his son from school in Graz at the agreed times. When he wanted to exercise the holiday contact right with his son in July 2017, the defendant informed him by text message that his son would not be going on holiday with him. She did not inform the plaintiff that she had moved to Spain with her son.
In his payment order application, the plaintiff claimed that he had had to incur travelling, detective, translation, court and legal representation costs in the Spanish proceedings initiated to obtain the right of contact in the amount of the claim in order to locate his son and enforce his right of contact.
The Bezirksgericht Graz-Ost (hereinafter ‘the Court of First Instance’) as the court seised under Article 7(2) and Article 7(1) of the Brussels I Regulation (recast) (1) dismissed the application for the issuance of the payment order citing its lack of international and local jurisdiction. The jurisdiction of the place of performance (2) could not be established because the violated contact regulation was based on a sovereign order. In addition, the tort jurisdiction (3) was also to be denied because the defendant had already been in Spain with the son when the initial damage occurred.
The Landesgericht für Zivilrechtssachen Graz (hereinafter ‘the Court of Appeal’) confirmed the decision of the Court of First Instance and ordered it to continue the proceedings only in respect of the claims for expenses and detective costs.
The plaintiff's revision filed with the Oberstes Gerichtshof (hereinafter ‘the Supreme Court’) was found admissible and justified. Contrary to the opinion of the lower courts, the tort jurisdiction could be established. The defendant, as the sole custodian, also had the right against the plaintiff to determine the son's place of residence in Austria or abroad. However, she failed to keep the son available in Graz after school for the purpose of exercising the plaintiff's right of contact as determined by the court. The defendant did not fulfil this obligation. The place where she should have acted, namely to hand over the son, was in Graz, irrespective of her changed place of residence until a new regulation of the right of contact was put in place. The objection regarding the lack of international jurisdiction of the Court of First Instance was therefore to be rejected.
The Supreme Court ordered the Court of First Instance to conduct the requested proceedings, refraining from the used grounds for dismissal.
(1) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast).
(2) Article 7(1) of the Brussels I Regulation (recast).
(3) Article 7(2) of the Brussels I Regulation (recast).