Oberster Gerichtshof, Urteil vom 28/10/2009 7 Ob 171/09m
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2009:RS0125562
Date: 2009-10-28
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82009AT1028(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The father applied for sole custody over his underage son before an Austrian court. The respondent, the child’s mother, had left him and the child and returned to Hungary. She initiated proceedings for a divorce in Hungary and sought a provisional grant of custody rights. The respondent raised a plea of lack of jurisdiction of the Austrian courts. The Austrian court of first instance held that it lacked jurisdiction. This decision was upheld by the court of second instance. Thereupon, the applicant lodged an appeal to the Oberste Gerichtshof (AT).
The Obstere Gerichtshof grants the appeal. The facts have not yet been sufficiently cleared in order to finally determine the question of international jurisdiction. According to Article 19(2) Brussels II bis Regulation, it is determinative for the purposes of a stay of proceedings whether two proceedings involving the same cause of action are pending. It must be clarified whether the Hungarian court only took steps under Article 20 Brussels II bis Regulation and ordered provisional measures regardless of jurisdiction as to the substance of the matter. Findings are necessary regarding the number of proceedings pending, the claims made in those proceedings, and the people who brought the proceedings, as well as whether judgments have already been issued and whether proceedings are still pending. Should the object of the Hungarian proceedings only have been provisional measures, then it would not, from the outset, concern the same cause of action as proceedings on the substance.