Oberster Gerichtshof; 0020-09-09; 6 Ob 125/20f
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2020:0060OB00125.20F.0909.000
Date: 2020-09-09
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82020AT0909(51)_ENG_SUMJURE
JURE summary
JURE summary
A minor with his habitual residence in Germany (hereinafter ‘the plaintiff’) filed an action against an Austrian GmbH company (hereinafter ‘the defendant’) seeking compensation for damage, an award of pain and suffering damages and a declaration that the defendant should be liable for any harm incurred in the future.
The plaintiff based his claim on the fatal sledging accident of the plaintiff’s mother’s partner with whom she lived in a joint household.  Prior to filing the action, the plaintiff requested through his mother that a guardian ad litem be appointed to represent his interests. An enquiry in Germany revealed that this was not necessary. Having regard to the principle of procedural caution, the plaintiff filed this request nevertheless.
The Bezirksgericht Bludenz (hereinafter ‘the Court of First Instance’) rejected the request stating that under Article 8(1) of the new Brussels II Regulation (1), the courts competent to decide in matters relating to parental responsibility were the courts of the Member State where the child had its habitual residence upon filing the request, i.e. in Germany in this case.
The Landesgericht Feldkirch (hereinafter ‘the Court of Appeal’) upheld the decision of the Court of First Instance.
The revision filed by the plaintiff with the Oberstes Gerichtshof (hereinafter ‘the Supreme Court’) was found admissible but not justified.
In this case, the subject matter was not an assessment of a preliminary question but a measure concerning the protection and administration of property of a minor within the meaning of Article 1(2)(e) of the new Brussels II Regulation. The competent courts were the German courts.
The Supreme Court dismissed the revision of the plaintiff.
(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.