Oberster Gerichtshof, Beschluß vom 05/01/1998 5 Nd 515/97
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:1998:RS0109179
Date: 1998-01-05
Subject matter: Lugano Convention
Origin: Austria

81998AT0105(01)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The applicant, domiciled in Austria, had undertaken in a court settlement, concluded before the Bezirksgericht of Hietzing (AT), to pay maintenance to the respondent, domiciled in Germany, for the minor children P. and C.. He applied to the OGH (AT) for a determination by the Austrian court having jurisdiction over the action for a declaration that the enforcement of the settlement was inadmissible. The applicant claimed that he had already paid in advance the whole sum due for a certain period. Nevertheless, the respondent had demanded payment under penalty of enforcement measures. He contended that the Austrian courts had jurisdiction by virtue of Article 16(5) Lugano Convention. As the Austrian law of civil procedure did not provide for a court having local jurisdiction, the latter had to be determined by the OGH by way of a so-called "ordination".
The OGH (AT) dismisses the application. It holds that jurisdiction over the action intended by the applicant must be determined according to the Lugano Convention. According to the ECJ's jurisprudence on the Brussels Convention, which must be considered when applying the Lugano Convention, the scope of jurisdiction provided by Article 16 Lugano Convention must be narrowly interpreted. Article 16(5) confers exclusive jurisdiction on the courts in the State of enforcement, on the grounds that only these courts have the power to exercise enforcement measures. In the case of the applicant, the enforcement measures are not yet pending, they are only threatened. Thus, the applicant is not in fact seeking the control of enforcement, but rather a declaration that the respondent's claim no longer exists. However, that claim does not fall within the scope of Article 16(5). As the Austrian courts lack international jurisdiction, a right to a determination of the court having local jurisdiction cannot be established.