Oberster Gerichtshof, Urteil vom 18/07/2011 6 Ob 103/11g
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2011:RS0127066
Date: 2011-07-18
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82011AT0718(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The Danish applicant and the Austrian respondent were not married, but had a child together who held both Austrian and Danish citizenship. The applicant relocated with the child from Denmark to Austria. At the time of the move the respondent held the right of custody over the child. In the meantime, the applicant was granted the right of custody in Denmark. The applicant had initiated the proceedings concerning the right of custody prior to the removal of the child. The applicant applied to an Austrian court for the return of the child under the European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children from 20 May 1980 (European Convention on Custody). Thereby he invoked the two Danish judgments concerning custody. At first and second instance the application was dismissed, whereupon the applicant lodged an appeal to the Oberste Gerichtshof (AT).
The Oberste Gerichtshof (AT) dismisses the appeal. The European Convention on Custody is applicable; however, in the absence of international child abduction - the respondent held the right of custody at the time of the child's removal - none of its provisions are relevant. This is also true of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. The matter does not fall within the scope of Regulation (EC) No. 2201/2003 "Brussels II bis", because Denmark is not a Member State within the meaning of the Regulation. As a consequence thereof, Article 11 of the said Regulation would not be applicable even in the event of an application according to the 1980 Hague Convention; furthermore "undertakings and safe harbour orders" according to Article 11 Brussels II bis Regulation are not provided for in the European Convention on Custody.