Oberster Gerichtshof, Urteil vom 28/04/2011 1 Ob 44/11v
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2011:RS0127048
Date: 2011-04-28
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82011AT0428(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The parties were married to each other. The marriage was legally dissolved. The claimant filed an application with the Bezirksgericht of Vienna City (AT) for the division of the matrimonial commonly used assets and savings. The defendant brought an action before the Amtsgericht of E. (DE) against the claimant on account of accrued gains. The parties are in dispute both as to whether lis pendens from the defendant’s German claim must be observed and as to which proceeding was initiated first. The Bezirksgericht, and on appeal the Landesgericht of Vienna, dismissed the objection to lis pendens. The claimant lodged an appeal on a point of law before the OGH (AT).
The OGH overturns the decision of the courts of lower instance, stating that the Brussels I Regulation is not applicable to this proceeding as a result of Article 1(2)(a) Brussels I Regulation. All proprietary relationships between a married couple that arise directly as a result of a marriage or its dissolution belong to the regime of matrimonial property, which is excluded from the Regulation‘s scope of application. The division of matrimonial commonly used assets, e.g., household effects, and matrimonial savings between the married couple also belong to this regime. Because matrimonial property law and the division of the household effects and savings of a married couple do not fall within the scope of application outlined in Article 1 Brussels IIbis Regulation, lis pendens must be assessed according to the law of the forum state, here, Austrian law. The Convention between Germany and Austria on the Reciprocal Recognition and Enforcement, which is applicable to the demand for division made in this case, is to be applied instead. This treaty also contains provisions for lis pendens. The treaty’s requirements, and in particular the question of which proceeding was pending first, must still be determined, and as a result the proceeding must be remitted to the court of first instance.