Oberster Gerichtshof, Urteil vom 18/07/2002 3 Ob 20/02s
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2002:RS0116739
Date: 2002-07-18
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82002AT0718(01)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
By judgment of a German court, a father domiciled in Austria was ordered to pay maintenance to his two daughters living in Germany. The court of first instance (AT) declared the judgment enforceable in Austria; this was confirmed by the court of appeal by reference only to Austrian law. The father claimed the adjustment of the amount of the claim on the basis of the actual change of circumstances.
The OGH (AT) first points out that the Brussels Convention must be applied. Accordingly, legal remedies against the enforcement of a foreign decision in the sense of Article 36 Brussels Convention are excluded, if the grounds on which the remedies are based could have been invoked already against the admission of the enforcement. However, the argument that the circumstances have changed with regard to the payment of maintenance does not only have enforcement as its subject and, due to often necessary but costly hearings of evidence, is not compatible with the summary character of proceedings for the declaration of enforceability. This fact, as well as the protection of the jurisdiction of the court of the domicile of the beneficiary of maintenance, require that the debtor of maintenance brings an action for adjustment of payment of maintenance in such cases. The jurisdiction of the court as regards this claim shall be determined anew according to Article 2 as well as Article 5(2) Brussels Convention.