BGH; 2016-02-10; XII ZB 38/15
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2016:100216BXIIZB38.15.0
Date: 2016-02-10
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82016DE0210(51)_ENG_SUMJURE
JURE summary
JURE summary
In this case, the plaintiff (hereinafter ‘the plaintiff’) approached the court seeking that a decision of a Polish court regarding the return of a child be declared enforceable. The child was born within the marriage of the plaintiff and the defendant (hereinafter ‘the defendant’).
The parents – both Polish citizens – lived with the child in Germany. After the plaintiff travelled for the second time without the consent of the defendant to Poland and stayed there, the defendant filed an application in Poland demanding the return of the child under 1980 Hague Convention (1). Prior to any decision, the defendant removed the child and took them to back to Germany. His application for the return of the child was subsequently dismissed.
During the custody proceedings, taking place as part of the divorce proceedings, a Polish district court ordered via a preliminary injunction (Sicherungsverfügung) that the child should stay with the mother for the duration of the proceedings. In addition, the court ordered the defendant to return the child to the plaintiff.
The plaintiff filed an application in Germany for the preliminary injunction to be declared enforceable so that the enforcement could be made. The Amtsgericht München (hereinafter ‘the Court of First Instance’) dismissed the application. Subsequently, the plaintiff filed an appeal with the Oberlandesgericht München (hereinafter ‘the Court of Appeal’) which annulled the decision of the Court of First Instance and attached the preliminary injunction regarding the obligation to return the child with an enforcement clause. The defendant filed a revision against the decision of the Court of Appeal.
The Bundesgerichtshof (hereinafter ‘the Supreme Court’) found that the Court of Appeal was correct to conclude that the right to determine the place of residence and the obligation to return the child falls within the scope of the new Brussels II Regulation (2) and that preconditions for an enforcement without the declaration of enforcement under Article 42(1), Article 40(1)(b) and Article 11(8) of the new Brussels II Regulation were not given.
In addition, the Court of Appeal was also correct to deny that the decision of the Polish court would be directly enforceable under Article 28 of the new Brussels II Regulation, for it was not evident that the Polish court had based its international jurisdiction on Article 8 ff. of the new Brussels II Regulation.
However, the Court of Appeal was wrong to conclude that the preconditions under Article 20 of the new Brussels II Regulation had been met. In this dispute, neither the urgency nor the presence in the member state of the persons in question were given.
If the precondition under Article 20 of the new Brussels II Regulation are not met, it is not possible to recognize and enforce a preliminary measure issued by a court lacking jurisdiction under the new Brussels II Regulation.
For this reason, the decision of the Court of Appeal was to be annulled and the appeal of the plaintiff to be dismissed.
(1) Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.
(2) 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.