BGH, Beschluss vom 09.02.2011, XII ZB 182/08
The appellant is the mother of two children born in Spain, while the respondent is her former partner, who still lives in Spain. Upon separation, the appellant intended to take both children to Germany. To this end, the parties concluded a notarised agreement under which the appellant was allowed to return to Germany with the children. After she moved to Germany with one of the children, the respondent brought provisional proceedings concerning custody rights in Spain. The court ordered the appellant in a judgment to return the child to the respondent. The respondent sought a declaration of enforceability of the judgment in Germany. The Amtsgericht of Stuttgart (DE) and the Oberlandesgericht of Stuttgart (DE) held in favour of its enforceability. The appellant lodged an appeal on a point of law to the BGH (DE).
The BGH overturns the orders of the lower courts and dismisses the application for a declaration of enforceability. The Spanish court did not clearly base its jurisdiction on Article 8 et seq. Brussels II bis Regulation with the consequence that, a priori, Article 21 et seq.Brussels II bis Regulation is not applicable. Thus, the decisive factor is whether jurisdiction was based on Article 20. According to the ECJ, measures issued pursuant to this provision are, a priori, not to be recognised according to Article 21 et seq. (ECJ, Ruling of 15 July 2010,C-256/09) because jurisdiction under the Regulation does not exist for such cases. However, if applicable, recognition and enforcement is conceivable under the conventions that are superseded according to Articles 59 to 63 Brussels II bis Regulation and under national law. The elements of Article 20 Brussels II bis Regulation are not fulfilled, however, because the child was situated in Germany at the time at which the provisional measure was issued. Therefore, the judgment of the Spanish court may not be issued with a declaration of enforceability.
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