Oberster Gerichtshof, Urteil vom 06/07/2011 7 Ob 86/11i
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2011:0070OB00086.11I.0706.000
Date: 2011-07-06
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82011AT0706(52)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The parties, both Italian citizens, were spouses. They separated in 2008. The defendant husband moved out of the marital residence in Austria and absconded to Italy, while the plaintiff stayed in Austria. On 17.02.2009, the defendant filed with the Tribunale of Florence (IT) for legal separation of the parties. On petition of the plaintiff, the court provisionally ordered the defendant to pay maintenance (Getrenntlebensunterhalt) in the amount of 400 euros per month. The plaintiff had already filed an action for maintenance on 14.01.2009 with the Bezirksgericht of Kitzbühel (AT), in which she requested the defendant be ordered to pay a considerably larger amount. The Bezirksgericht of Kitzbühel granted the plaintiff an additional 62 euros on top of the 400 euros per month awarded by the Italian court. It denied the remaining requests. The Landesgericht of Innsbruck (AT) lifted the judgment on the defendant to pay the additional 62 euros per month in response to the appeal jointly filed by the parties. The court affirmed the judgment in all other respects. The plaintiff filed an appeal to the OGH (AT).
The OGH affirms the appellate court's ruling. A judgment issued as an interim judgment of a conflicting proceeding is a judgment within the meaning of Article 32 Brussels I Regulation that is to be recognised and enforced in other Member States. If such a judgment obtains the force of res judicata, then it precludes a new judgment on the same subject matter. Both parties concordantly assumed that the maintenance judgments of the Tribunale of Florence had the force of res judicata. It is therefore immaterial whether that court correctly or incorrectly viewed itself with regard to Article 27 as having jurisdiction.