Oberster Gerichtshof, Urteil vom 16/02/2009 10 Nc 1/09t
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2009:0100NC00001.09T.0216.000
Date: 2009-02-16
Subject matter: Lugano Convention
Origin: Austria

82009AT0216(01)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The respondent was ordered to pay child support to the applicant for the minor son of both parties by the district court of Szczecin (PL) in 2002. The applicant then later relocated with her son to Vienna (AT). She claimed that the father was not paying the awarded child support. He was still living in Poland and owned no assets in Austria. The applicant intended to apply for public advance payments in lieu of child support. A requirement for this was that the Polish right of child support was declared enforceable in Austria. As a court was not available that could grant the writ of execution in Austria, she applied to the OGH (AT) for a determination of the competent court – the so called ordination.
The OGH rules that the Lugano Convention applies to the decision in 2002 of the Polish court regarding the child support. A competent court is to be selected in accordance with the ordination procedure if, inter alia, Austria is required by an international convention such as the Lugano Convention to exercise jurisdiction. The Austrian courts have jurisdiction to issue a declaration of enforceability of the Polish child support judgment pursuant to the application of the applicant. As the respondent does not reside in Austria nor can a competent court be determined by referring to a place in Austria where the decision is to be enforced, a competent court is not available. Therefore, this is to be decided during the process of ordination. The OGH determines that the court at the domicile of the mother and her child is competent court as it has the closest connection to the facts.