OLG Stuttgart; 2014-03-05; 17 UF 262/13
Decision by national courts in the field of European Union law — ECLI:DE:OLGSTUT:2014:0305.17UF262.13.0A
Date: 2014-03-05
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82014DE0305(51)_ENG_SUMJURE
JURE summary
JURE summary
A woman of Hungarian nationality (hereinafter ‘the plaintiff’) sought recognition and a declaration of enforceability of the judgment on custody of the child she has with her German husband (hereinafter ‘the defendant’).
The title is the interim order of the Kreisgerichts Dunakeszi in Hungary (hereinafter ‘the Hungarian court’), by which custody of the child was transferred to the plaintiff. The defendant was further required to return the child to the plaintiff within 2 days. A year earlier, the plaintiff had already filed for divorce in Hungary.
The Amtsgericht Stuttgart (hereinafter ‘the Court of First Instance’) decided that the order of the Hungarian court should be recognised and provided with an enforcement order.
An appeal against the order of the Court of First Instance has been lodged by the defendant to the Oberlandesgericht Stuttgart (hereinafter ‘the Court of Appeal’). It is not the Hungarian court but the District Court of Leonberg which is competent to hear the custody proceedings since the child was habitually resident in Leonberg when the application for custody was filed.
The appeal is admissible but is not successful on the merits.
An interim measure in the form of an order for urgent measures is not automatically covered by Article 21 et seq. of the new Brussels II Regulation (1), under which judgments given in a Member State are recognised in the other Member States without any special procedure being required.
It must be examined whether the Hungarian court based its jurisdiction on Article 8 et seq. of the new Brussels II Regulation. The Hungarian court did not explicitly refer to these provisions. However, according to the grounds of the decision, there is no doubt that the Hungarian court assumed that the child was habitually resident in Hungary. This established international jurisdiction under Article 8 of the new Brussels II Regulation for decisions on parental responsibility.
The child was already in Hungary with the plaintiff for a long period of time prior to the decision of the Hungarian court.
Article 26 of the new Brussels II Regulation prohibits any review of the substance of the decision to be recognised. Nor is it necessary to examine the infringement of the public order in Hungary as claimed by the defendant. Under Article 23(a) of the new Brussels II Regulation, there is a ground for non-recognition only if recognition is contrary to public policy in the State addressed, in this case the German Ordre Public.
The application for enforcement was made by the entitled party, the plaintiff, and therefore the decision of the Hungarian court is justly declared enforceable in Germany by the Court of First Instance in accordance with Article 28 of the new Brussels II Regulation.
The Court of Appeal dismissed the defendant’s appeal and ordered for the immediate effect of the Hungarian court’s decision.
(1) 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.