Oberster Gerichtshof, Urteil vom 06/07/2009 1 Ob 115/09g
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2009:RS0125250
Date: 2009-07-06
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82009AT0706(52)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The claimant, a US citizen, and the defendant, a Mexican, married in the USA, where they lived together. Subsequently they moved together to Vienna (AT), where the claimant sought a long term position as an opera singer. The defendant travelled abroad frequently for work reasons for several months at a time. After separating the defendant rented an apartment in Vienna. In addition, he began to make private contacts there. However, he retained a second residence with his father in San Diego (USA). Within the scope of divorce proceedings before an Austrian court, he raised a challenge to its international jurisdiction. The challenge was granted. The court of second instance upheld this judgment. Thereupon the claimant lodged an appeal to the Oberster Gerichtshof (AT).
The Oberster Gerichtshof grants the appeal. The Regulation (EC) No. 2201/2003 ("Brussels II bis Regulation") does not contain any further definition of the term "habitual residence". However, reference is made to the definition given by the ECJ of "habitual residence", according to which the place of habitual residence is where the person concerned has established, with the intention that it should be of a lasting character, the permanent or habitual centre of his interests. For the purposes of determining habitual residence, all the factual circumstances which constitute such residence must be taken into account. In fulfilling the criterion of "centre of interests" in the case of adults, intention plays an important role. In the current case the parties have moved their centre of interests to Austria. Since Article 3(1)(a) second case Brussels II bis Regulation is thus applicable, the Austrian courts have international jurisdiction.