Oberster Gerichtshof, Urteil vom 30/08/2000 6 Ob 319/99a
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2000:0060OB00319.99A.0830.000
Date: 2000-08-30
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82000AT0830(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff, a minor domiciled in Austria, requests the approval of an action by the guardianship court. In this action, he requests in Austria that his father domiciled in The Netherlands pays maintenance exempt from taxes, which was paid by his employer although it was directly intended for the plaintiff. The court of first instance refused to grant the approval, since the claim in this case does not concern maintenance pursuant to Article 5(2) Brussels Convention and thus no Austrian court has jurisdiction. The court of appeal admitted the claim for maintenance. However it considered that a decision amending the judgment on the maintenance already given in the Netherlands was necessary.
The OGH (AT) finds on the one hand that for the approval of the claim concerned, one shall only examine its chances of success. However, the jurisdiction of the Austrian court could only result from Article 5(3) Brussels Convention. Claims based on unjust enrichment, which are at hand in the present case, cannot however be raised according to this provision. This also applies to actions for unjust enrichment resulting from an infringement of the legal rights of the person who suffers financial damage, since they are only directed at the repayment of the enrichment but not to the payment of damages. It does not need to be examined whether a claim based on unjust enrichment may be considered as maintenance within the meaning of Article 5(2) Brussels Convention, as this has not been asserted by the parties. Besides, the enrichment does not result from relations regarding family law but constitutes a direct claim of the plaintiff against his father’s employer. Thus on the ground of the lack of Austrian competence, the claim has no chance to succeed and thus it cannot be approved.