Oberster Gerichtshof, Urteil vom 24/08/2010 2 Ob 94/10b
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2010:RS0126265
Date: 2010-08-24
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82010AT0824(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The applicant, domiciled in Austria, was ordered by an Austrian court in a final judgment to pay maintenance to the respondent, his son, who was born out of wedlock. Subsequently, he applied to have the maintenance claim of his son, who lived in Romania, reduced due to a change in circumstances. The court dismissed the application without serving it on the respondent. The court of second instance upheld that decision. The applicant lodged an appeal to the Oberste Gerichtshof (AT).
The Oberster Gerichtshof (AT) grants the appeal. Article 1(1) Brussels I Regulation, the jurisdictional rules of which also apply in non-contentious matters, extends to all claims arising under private law, including maintenance claims. This is also true regarding actions for amendment of an existing judgment, in relation to which the Brussels I Regulation does not provide a separate ground of international jurisdiction. The State of the courts that issued the maintenance judgment that is to be amended does not hold on to international jurisdiction. In the event of a new action, jurisdiction must be determined anew according to the Brussels I Regulation. The maintenance debtor, who seeks an amendment of the maintenance judgment due to a deterioration of his financial situation, may only invoke Article 2 Brussels I Regulation. However, due to the freedom of choice extended to defendants in Article 24 Brussels I Regulation, the court seised may not, within the scope of the Brussels I Regulation, declare a lack of international jurisdiction of its own motion at the outset of proceedings, but rather must give the defendant or respondent the opportunity to enter an appearance. Thus, the decisions of the prior instances are overturned.