Bundesverfassungsgericht; 2015-05-19; 2 BvR 1170/14
Decision by national courts in the field of European Union law — ECLI:DE:BVerfG:2015:rk20150519.2bvr117014
Date: 2015-05-19
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82015DE0519(52)_ENG_SUMJURE
JURE summary
JURE summary
A man domiciled in Germany (hereinafter ‘the plaintiff’) filed an application seeking that a woman living in the United Kingdom (hereinafter ‘the defendant’) and her husband enable him to have contact with his child born in the United Kingdom (hereinafter ‘the child’).
The plaintiff and the defendant had an extramarital relationship. The defendant got pregnant and informed the plaintiff that she intended to continue her marriage and to moved back to her husband.
The plaintiff claimed to be the biological father of the child.
The Amtsgericht Fulda dismissed the plaintiff’s application regarding the contact with the child.
The appeal lodged by the plaintiff with the Oberlandesgericht Frankfurt am Main (hereinafter ‘the Court of Appeal’) was dismissed on the basis of the then-current law.
The Bundesverfassungsgericht (hereinafter ‘Federal Constitutional Court’) refused to decide on this matter and rejected the constitutional complaint filed by the plaintiff. However, after being approached by the plaintiff, the European Court of Human Rights concluded that Article 5 of the ECHR (1) had been violated as the German courts failed to examine whether the contact between the child and the plaintiff could be beneficial for the child under special circumstances.
Subsequently, the plaintiff applied to the Court of Appeal to renew the terminated proceedings and pursued his claim regarding contact with the child further. The Court of Appeal decided in favour of renewing the proceedings by an interim resolution, citing that the plaintiff justified his application reasonably. Under international private law, Germany was obliged to follow final decisions made by the European Court of Human Rights.
The defendant filed a complaint with the Bundesgerichtshof (hereinafter ‘the Supreme Court’) stating that the plaintiff could not invoke Article 6(1) nor Article 2(2) of the GG (2). It was not recognised or proven that the plaintiff was the biological father of the child. In addition, no personality rights of the plaintiff had been violated and the European Court of Human Rights ignored from the start the international jurisdiction of the courts in the United Kingdom which followed from Article 8 of the new Brussels II Regulation (3).
The Supreme Court annulled the decision of the Court of Appeal and dismissed the plaintiff’s application to renew to proceedings regarding the contact with the child. Under Article 580(8) of the ZPO (4), as amended from 31 December 2006, proceedings were to be renewed if the European Court of Human Rights found a violation of ECHR or its protocols and the decision was based on such violation. Under Article 35 EGZPO (5) which provided for the decisive date, Article 580(8) of the ZPO was not applicable to proceedings which were terminated with a final effect prior to 31 December 2006.
The application filed by the plaintiff seeking that the court order preliminary legal protection, annul the resolution of the Supreme Court and restore the decision of the Court of Appeal was dismissed by the second senate of the Supreme Court.
The constitutional complaint filed by the plaintiff with the Supreme Court was not fit for a decision as the respective preconditions had not been met.
The interpretation made by the Supreme Court was correct. One of the recognised interpretation principles was the teleological interpretation, i.e. the restricted interpretation of wording of the law on the basis of its meaning and purpose. In concrete cases, it might be necessary to teleologically restrict the regulations of common law to reflect the European Convention on Human Rights and the decisions of the European Court of Human Rights.
The Federal Constitutional Court found that the Supreme Court did not fail to interpret the case in line with the respective Convention.
(1) Convention for the Protection of Human Rights and Fundamental Freedoms.
(2) Grundgesetz für die Bundesrepublik Deutschland (Basic Law of the Federal Republic of Germany).
(3) 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.
(4) Zivilprozessordnung (Code of Civil Procedure).
(5) Einführung der Zivilprozessordnung (Introductory Act regarding the Code of Civil Procedure).