KG Berlin; 2016-09-01; 3 UF 88/16
Decision by national courts in the field of European Union law — ECLI:DE:KG:2016:0901.3UF88.16.0A
Date: 2016-09-01
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Germany

82016DE0901(52)_ENG_SUMJURE
JURE summary
JURE summary
An adult son living with his mother in Switzerland (hereinafter ‘the plaintiff’) whose father had earlier lived in Germany (hereinafter ‘the defendant’)  sought a judgment of a Swiss Bezirksgericht (district court) to be declared enforceable.
The defendant had unlawfully stopped the monthly maintenance payments for the plaintiff, which formed a part of the agreement on the consequences of a divorce concluded between the defendant and the plaintiff’s mother, ending after the plaintiff finished vocational school and training as a multimedia electronic technician at the age of 22. The defendant was obliged to pay to the plaintiff a monthly maintenance of SFR 1,500 until such time when he finishes his bachelor studies at the University of Zürich.
The Amtsgericht Pankow-Weißensee (hereinafter ‘the Court of First Instance’) dismissed the application of the plaintiff stating that the judgment of the Swiss Bezirksgericht had not included any enforceable content in the form of a payment order. Enforcement under Article 31 of the Lugano Convention (1) was not applicable.
The complaint against this decision lodged by the plaintiff by the Kammergericht Berlin (hereinafter ‘the Court of Appeal’) was found unjustified.
The Court of Appeal stated that contrary to the defendant’s opinion, the German courts were not lacking international jurisdiction. The enforcement was not prevented by the fact that the defendant was not domiciled in the enforcement state at that time (Article 32(2)(2) of the Lugano Convention).
Contrary to the legal argumentation of the Court of First Instance, the judgment of the Swiss court is capable to be enforced in Germany due to the fact that the agreement on the consequences of divorce had been approved by a Swiss court.
The enforcement in Germany, however, is to be refused for the lack of specificity of the judgement as this would have been in breach with the German public policy (Article 27(1) of the Lugano Convention). This was the case in the dispute. It could not be ascertained with certainty what was meant with a ‘proper conclusion of education’ (the condition for the defendant, after the fulfilment of which he was entitled to stop the maintenance payments to the plaintiff). The question was whether this condition would be met upon passing the ‘Maturität’ exam or whether the bachelors studies represented a content and time-related continuation of the previous training as a multimedia electronic technician. Answering this question and a specification of the Swiss title withing the exequatur procedure were not possible.
The Court of Appeal dismissed the complaint of the plaintiff against the resolution of the Court of First Instance.
(1) Convention on jurisdiction and the enforcement of judgments in civil and commercial matters - Done at Lugano on 16 September 1988.