BGH; 2022-05-11; XII ZB 423/21
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2022:110522BXIIZB423.21.0
Date: 2022-05-11
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Germany

82022DE0511(51)_ENG_SUMJURE
JURE summary
JURE summary
The Bundesgerichtshof (hereinafter ‘the Supreme Court’) decided about a revision based on a claimed lack of jurisdiction of the Court of First Instance in connection with a dispute regarding the enforceability of a foreign maintenance title.
The subject-matter of the dispute between the father of a child domiciled in Germany (hereinafter the ‘defendant’) and the mother of the child domiciled in Switzerland (hereinafter the ‘plaintiff’) was the declaration of enforceability of a decision made by the Swiss district court Rorschach regarding spousal and child maintenance.
The plaintiff requested that an enforcement clause be attached to the court decision. The Amtsgericht Stuttgart (hereinafter ‘the Court of First Instance’) upheld the application when applying the Hague Convention of 2 October 1973 on the Law Applicable to Maintenance Obligations (1).  The defendant lodged an appeal with the Oberlandesgericht Stuttgart (hereinafter ‘the Court of Appeal’), which was dismissed under the application of the new Lugano Convention (2). Subsequently, the defendant filed a revision with the Supreme Court demanding that the application for the declaration of enforceability be refused.
According to the defendant, the Court of First Instance had not held the subject-matter jurisdiction to decide on the application for the declaration of enforceability was to be directed to the chairman of the Landgericht under Article 39 of the new Lugano Convention in connection with Annex II.
The Supreme Court stated that the revision of the defendant failed to prove any errors within proceedings conducted before the Court of Appeal. Under Article 2 of the AUG (3) in connection with Article 65(4) of the FamFG (4), a revision may not rely on the fact that a court of first instance assumed its jurisdiction incorrectly. This also applies within an exequatur procedure if the Court of Appeal makes a decision as to the merits of the case, this due to the fact that the court has the capacity of a statutory judgement body and an alleged lack of jurisdiction of the Court of First Instance has no effects in this regard.
Based on the above grounds, the Supreme Court decided to dismiss the revision of the defendant.
(1) Hague Convention of 2 October 1973 on the Law Applicable to Maintenance Obligations.
(2) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(3) Gesetz zur Geltendmachung von Unterhaltsansprüchen im Verkehr mit ausländischen Staaten (Act on the Recovery of Maintenance in Relations with Foreign States).
(4) 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).