OLG Karlsruhe; 2020-09-11; 16 UF 39/19
Decision by national courts in the field of European Union law — ECLI:DE:OLGKARL:2020:0911.16UF39.19.0A
Date: 2020-09-11
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82020DE0911(51)_ENG_SUMJURE
JURE summary
JURE summary
The Oberlandesgericht Karlsruhe (hereinafter ‘the Court of Appeal’) decided a case concerning the objection to an alleged denial of hearing and an application for a renewed examination of a stay of proceedings within the decision-making of an appellate court regarding the declaration of its lack of jurisdiction as a consequence of a parent having custody rights moving with the child to another Member State.
The underlying substance was a dispute between a father living in Germany (hereinafter the ‘plaintiff’) and a mother living in Bulgaria (hereinafter the ‘defendant’).
The plaintiff lodged an appeal against a decision of the Amtsgericht Baden-Baden (hereinafter ‘the Court of First Instance’) regarding his rights to access. By resolution of 20th April 2020, the Court of Appeal stayed the proceedings and invited the parties to introduce a request before the competent Bulgarian court under Article 15(4) of the new Brussels II Regulation (1) to determine the rights of access under its own jurisdiction.
By a resolution of 10 August 2020, the Court of Appeal declared its lack of jurisdiction to determine the rights of access to the child. Subsequently, the plaintiff objected to this decision claiming a violation of the right to be heard.
According to Article 44(1)(1)(1) of the FamFG (2), the preconditions for the admissibility of an objection regarding the violation of a right to be heard are a substantiated demonstration of a breach of a right to be heard and its importance for the decision making. In the opinion of the Court of Appeal, however, these were missing. The complainant is obliged to sufficiently demonstrate the substance of the breach of a right to be heard and why it is substantial for the decision. (3)
Despite the fact that the plaintiff explained in detail why the preconditions for the stay of proceedings were not given in the case, he failed to prove that the Court of Appeal breached the right to be heard in a substantive manner when issuing the final decision of 10 August 2020. The plaintiff demanded again that the decision to stay to proceedings of 20 April 2020 be annulled. This decision, however, became final. Therefore, the conditions of Article 15(1) of the new Brussels II Regulation regarding the stay of proceedings were met and were not subject to any further examination upon deciding whether the court first seised should declare its lack of jurisdiction or not.
For these reasons, the Court of Appeal dismissed the objection of the plaintiff that a right to be heard was breached with regard to the decision of the Court of Appeal of 10th August 2020, citing its inadmissibility.
(1) Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000.
(2) 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).
(3) Judgment of the Bundesgerichtshof (Federal Court of Justice of Germany) of 26 July 2017, V ZR 98/16.