Oberster Gerichtshof, Urteil vom 02/03/2000 9 Ob 22/00a
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2000:RS0113225
Date: 2000-03-02
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82000AT0302(02)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff residing in Austria requested from the defendant, her father, the payment of maintenance on the basis of Article 5(2) Brussels Convention before the court of her domicile. The defendant had a domicile in Austria, worked in Germany and also had a domicile there. The court of first instance declared itself incompetent on the ground of the lack of cross-border relationships, to which the Lugano Convention (to be more accurate, the Brussels Convention) is not applicable. This was confirmed by the court of appeal.
The OGH (AT) finds on the one hand that the jurisdiction for maintenance claims according to Article 5(2) Brussels Convention is not applicable. Indeed, this Convention does not apply if a dispute concerning exclusively parties which are seated in the same Contracting State is pending before the courts of that State. The question if one of these parties has its domicile in the Contracting State, which courts are seised, is to be determined according to Article 52(1) Brussels Convention according to the law of this Contracting State. Thereto the defendant has a domicile in Austria. In the case where the defendant has a domicile in the State of forum as well as in another Contracting Sate, the domicile of the State of forum prevails. This is why one need not examine whether in this case the defendant also has a domicile in Germany. As Article 5(2) Brussels Convention is not applicable, the court seised is not competent.