OLG Frankfurt; 2023-01-16; 16.01.2023
Decision by national courts in the field of European Union law — ECLI:DE:OLGHE:2023:0116.4UF184.19.00
Date: 2023-01-16
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82023DE0116(51)_ENG_SUMJURE
JURE summary
JURE summary
A father (hereinafter ‘the plaintiff’), as a German national, applied for the transfer of sole parental custody or, alternatively, the right to determine the place of residence for his child and also requested that the mother, a Polish national (hereinafter ‘the defendant’), returned the child to Switzerland, where the plaintiff worked. The defendant had moved with the child from Germany to Poland in 2016 without the plaintiff's consent. The stay in Poland was intended to be temporary. The child was later to attend a kindergarten in Switzerland. The defendant argued that the plaintiff had given his consent to the move to Poland and had participated in obtaining the Polish passport.
The Amtsgericht Frankfurt (hereinafter ‘the Court of First Instance’), seised pursuant to Article 11(6) in conjunction with Article 11(7) and Article 10 of the new Brussels II Regulation (1), dismissed the plaintiff's application citing that German courts did not have international jurisdiction. The plaintiff could not provide sufficient evidence to the temporal limitation of the consent to the residence of the defendant and the child in Poland. The child's habitual residence had been established in Poland since 2016.
The Oberlandesgericht Frankfurt (hereinafter ‘the Court of Appeal’) dismissed the plaintiff's appeal and confirmed the decision of the Court of First Instance. The international jurisdiction of German courts could not be derived from either Article 10 or Article 11 of the new Brussels II Regulation. The application of Article 10 is limited to cases in which both states concerned are EU member states. As Switzerland was not bound by the new Brussels II Regulation, this provision was not relevant for the case. The Court of Appeal clarified that the child had been living in Poland since 2016 and was integrated there. The claimant should have filed an application for return within one year of becoming aware of the wrongful removal or retention in order to preserve the continuing jurisdiction of the German courts under Article 10(b) of the new Brussels II Regulation. However, such an application had not been filed in timely manner.
Furthermore, the application for parental custody was not in the best interests of the child in the light of Section 1671 of the BGB (2), as the defendant had been the child's main carer for years. The plaintiff's argument that the defendant was jeopardising the child's welfare by acting on her own authority could not be sufficiently substantiated.
As the exact interpretation of Article 10 and Article 11 of the new Brussels II Regulation in cases involving third countries (Switzerland) was unclear, the Court of Appeal referred several questions to the Court of Justice of the European Union for a preliminary ruling. In particular, it is to be clarified whether Article 10 is applicable to third-country cases and what requirements are to be placed on the demonstration of continuing jurisdiction. Furthermore, it is to be clarified whether the special procedural rules of Article 11 of the new Brussels II Regulation also apply to return proceedings under the Hague Convention (3) in relations between an EU Member State and a third country.
The Court of Appeal stayed the proceedings pending the decision of the Court of Justice of the European Union.
(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) Bürgerliches Gesetzbuch (the Civil Code).
(3) Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.