OLG Frankfurt; 2015-08-05; 4 UF 168/15
Decision by national courts in the field of European Union law — ECLI:DE:OLGHE:2015:0805.4UF168.15.0A
Date: 2015-08-05
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82015DE0805(51)_ENG_SUMJURE
JURE summary
JURE summary
The case concerned an application filed with a German court seeking that an Austrian order regarding maintenance payments between spouses be declared enforceable.
The plaintiff (hereinafter ‘the plaintiff’) filed an application with the Amtsgericht – Familiengericht – Frankfurt am Main (hereinafter ‘the Court of First Instance’) seeking that an agreement concluded between the parties before an Austrian district court in 1994, under which the defendant (hereinafter ‘the defendant’) was obliged to provide monthly maintenance payments, to be declared enforceable.
Based on a private agreement between the parties, the obligation was reduced to ATS 4,000 per month. The Court of First Instance declared the agreement to be enforceable in Germany in the scope of the original maintenance obligation, applying as legal basis the AUG (1) and the Council Regulation (EC) No 4/2009 (2). The appeal of the defendant concerned this very fact.
Based on the notice of the senate of the Oberlandesgericht Frankfurt am Main, the plaintiff limited its application and the defendant withdrew its appeal.
The fact that the court agreement was concluded in 1994 is, however, of a substantial importance.
Under Article 75(2) of the Council Regulation (EC) No 4/2009, Chapter IV Section 2 and 3 therefore apply for the decisions included therein only if they, with regard to the purpose of the recognition and enforcement, fall within the scope of the Brussels I Regulation.
Under Article 66(1) of the Brussels I Regulation, it is to be applied only to such documents which were executed after the effective day of this Regulation. This was not the case in this dispute. The precondition under Article 66(2) were not given either.
Even though the Brussels I Regulation supersedes the conventions and agreements stated in Article 69, according to 70(2) they remain valid in relation to enforcement. In this case, the applicable legal basis is therefore not the Council Regulation (EC) No 4/2009 in connection with the Brussels I Regulation, but the agreement concluded between Germany and  Austria on 6 June 1959 regarding the mutual recognition and enforcement of court decisions, settlements and public instruments in civil and commercial matters. The relevant domestic proceedings are subject to ZPVtrAUTAG (4).
The Court of Appeal was of the opinion that if was necessary to declare the resolution of the court for family matters to be partially ineffective so that it could be established to which extent the resolution issued by the Court of First Instance remains valid. The resolution was to be modified to that extent that the agreement of the parties regarding the amount of ATS 4,000 per month was going to be declared enforceable.
(1) Gesetz zur Geltendmachung von Unterhaltsansprüchen im Verkehr mit ausländischen Staaten (Act on the Recovery of Maintenance in Relations with Foreign States - Foreign Maintenance Act).
(2) Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations.
(3) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(4) Gesetz zur Ausführung des Vertrages zwischen der Bundesrepublik Deutschland und der Republik Österreich vom 6. Juni 1959 über die gegenseitige Anerkennung und Vollstreckung von gerichtlichen Entscheidungen, Vergleichen und öffentlichen Urkunden in Zivil- und Handelssachen vom 8. März 1960 (Act to implement the Agrement between the Federal Republic Germany and Republic Austria of 6 June 1959 regarding the mutual recognition and enforcement of court decisions, settlements and public instruments in civil and commercial matters).