OLG Karlsruhe; 2023-04-24; 5 UF 174/22
Decision by national courts in the field of European Union law — ECLI:DE:OLGKARL:2023:0424.5UF174.22.00
Date: 2023-04-24
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82023DE0424(52)_ENG_SUMJURE
JURE summary
JURE summary
This case concerns the parental responsibility for two minor children brought before the Oberlandesgericht Karlsruhe (hereinafter ‘the Court of Appeal’).
The mother (hereinafter ‘the plaintiff’) and the father (hereinafter ‘the defendant’) exercised joint custody on the basis of declarations made in September 2017 and December 2020.
The parents last resided together in France. In November 2021, the plaintiff moved to Germany with the children. Several proceedings were subsequently commenced in different jurisdictions:
In February 2022, the plaintiff applied to the Amtsgericht Freiburg (hereinafter ‘the Court of First Instance’) for an interim order regulating the defendant’s rights of access to the children. In March 2022, the defendant commenced main proceedings before the Tribunal Judiciaire de T. (France) concerning parental responsibility, including custody. In April 2022, the plaintiff commenced the main proceedings in Germany for sole custody. In June 2022, the plaintiff filed another application for the interim measure in relation to sole custody with the Court of First Instance, which granted her the temporary residence of both children. In August 2022, the Court of First Instance finally awarded sole custody to the plaintiff.
In September 2022, the defendant appealed against the custody decision of the Court of First Instance to the Court of Appeal and sought a stay of the German proceedings pending a final decision by the French court in the ongoing custody proceedings.
The French court decided in December 2022 that it was the court first seised under Article 19(2) of the new Brussels II Regulation (1), but declared that it lacked international jurisdiction to rule on the custody matter pursuant to Article 8(1) of the new Brussels II Regulation, since the children’s habitual residence had been in Germany since November 2021. The defendant appealed in France against this French decision, but no final judgment had been given at the time of the German appeal proceedings.
The Court of Appeal (Germany) confirmed the application of the new Brussels II Regulation to this case. It ruled out the application of Council Regulation (EU) 2019/1111 (2) as the proceedings were instituted in April 2022. According to Article 19(2) of the new Brussels II Regulation ‘where proceedings relating to parental responsibility relating to the same child and involving the same cause of action are brought before courts of different Member States, the court second seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established’.
The French court was first seised for the custody proceedings because the defendant’s application, made in March 2022, preceded the German custody proceedings, which were initiated in April 2022. The plaintiff’s earlier application in Germany for rights of access cannot be considered to be the same cause of action as the defendant’s custody proceedings in France. Although both issues relate to parental responsibility, they constitute separate claims under Article 19(2) since rights of access and rights of custody are separate legal matters. The application to the Court of First Instance in February 2022 for an interim order on rights of access does not mean that the Court of First Instance is also the court first seised for the custody proceedings; it is instead a French court.
The Court of Appeal, therefore, ordered that the German proceedings be stayed until the French courts, including the French appeal proceedings, have made a final decision on jurisdiction.
(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.
(2) Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast).