Oberster Gerichtshof, Urteil vom 11/09/2008 7 Ob 155/08g
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2008:RS0124255
Date: 2008-09-11
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82008AT0911(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
After four years of marriage in Switzerland, the Austrian plaintiff moved to Austria at the end of March 2008. The plaintiff made an application for a divorce from her Italian husband, still domiciled in Switzerland, on the 2 April 2008 before the Bezirksgericht of Purkersdorf (AT) with reference to the autonomous Austrian rules of jurisdiction of para. 76 JN (laws of jurisdiction). The court of first instance dismissed the action in limine. The appellate court confirmed this decision. It granted an appeal to the OGH.
The OGH (AT) declares that proceedings may only be held in another Member State than that of the habitual residence or nationality of the defendant, in accordance with the rules of jurisdiction of Regulation 2201/2003 "Brussels IIbis", if one of the alternatives set out by Article 6 Regulation 2201/2003 "Brussels IIbis" are fulfilled. The Italian nationality of the defendant in this case means that the autonomous Austrian laws of jurisdiction do not apply. Pursuant to Article 17 Regulation 2201/2003 "Brussels IIbis", the court must, of its own motion, examine its competence and declare itself incompetent if it so finds. Conferral of jurisdiction through the entrance of an appearance in proceedings without a jurisdictional challenge does not arise in this case. As the action was brought before the six month waiting period of Article 3(1)(a) point 6, the court of first instance correctly dismissed the action due to the lack of international jurisdiction.