Oberster Gerichtshof, Urteil vom 07/07/2009 5 Ob 41/09d
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2009:RS0125007
Date: 2009-07-07
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82009AT0707(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The applicant lived in Bosnia and, according to his account, moved to Austria with his mother during the proceedings. The respondent, who is resident in Austria, is the divorced father of the applicant. In a divorce decree regarding the parents of the applicant, which was issued in 1998 in a EU Member State, the respondent was obliged to pay child support "(...) in the amount of a monthly sum of 15% of his personal income (...)" in favour of the applicant. According to the applicant, this maintenance order was issued with a declaration of enforceability in Austria in 2008. Since the maintenance obligation
was not enforceable
under Austrian law in the form in which it was contained in the judgment, he applied for the clarification of the judgment in a non-contentious procedure of Austrian procedural law. The Landesgericht of Innsbruck dismissed the application at second instance. The applicant lodged an appeal on a point of law to the OGH (AT).
The OGH grants the appeal on a point of law. Regarding Austrian law, it states that the procedure for the clarification of a judgment serves to further concretise an existing enforceable judgment, but not, however, to create a new enforceable judgment. In addition, where under national law certain additional information or documents are lacking, these may be included in the procedure to clarify a judgment. The aim of the action is a declaration of the existence of an enforceable claim, which is also admissible as a non-contentious clarification of a judgment. With respect to international jurisdiction, maintenance claims fall within the scope of application of the Brussels I Regulation pursuant to Article 1(1). It also applies to non-contentious proceedings. The clarification of a judgment is to be treated as an action for amendment, which may be brought in the forum of Article 2 Brussels I Regulation before the court for the domicile of the maintenance debtor.