EUPillar BGH, 09.02.2011

Summary

The parties argued on a judgment of a Spanish court concerning custody of their two children born in Spain. According to the applicant’s request the German Local Court and the German Higher Regional Court declared the Spanish Court’s judgment enforceable. The defendant contested these decisions. The Federal Court of Justice made a preliminary reference concerning the rules in Art. 8, 20 Brussels IIa in 2009 asking whether Art. 21 et seq. Brussels IIbis applied to provisional measures, relating to rights of custody, falling within the scope of Article 20 of that regulation. The CJEU (C-256/09) held: ‘The provisions laid down in Article 21 et seq. of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, do not apply to provisional measures, relating to rights of custody, falling within the scope of Article 20 of that regulation.’ [Paragraph 101] The Federal Court of Justice according to this ruling held that recognition and enforcement of judgments regarding parental custody that were given by a court having international jurisdiction pursuant to Art. 8 et seq. Brussels IIbis had to be considered under the rules of Art. 21 et seq. Brussels IIa Regulation. Further, in case of a provisional measure taken on the basis of Art. 20 by a court not having international jurisdiction pursuant to Art. 8 et seq. the rules in Art. 21 et seq. weren’t applicable. In these cases the recognition and enforcement of the measure had to be performed according to national law. But, if the requirements of Art 20 weren’t fulfilled the recognition or enforcement in general couldn’t be granted under the Brussels IIa Regulation. It thirdly stated: the distinction between measures taken by the Court having international jurisdiction in the main proceedings and between measures which possibly were taken under Art. 20 has to be made according to the question whether the court of origin based its international jurisdiction on Art. 8 et seq. If the judgment taking the provisional measure doesn’t contain a clear justification of its international jurisdiction it can be assumed that the judgment hasn’t been given according to the rules in Brussels IIa regarding international jurisdiction. The court in the present case denied the declaration of enforceability of the Spanish judgment: The international jurisdiction of the Spanish court couldn’t be clearly derived from the judgment. A habitual residence pursuant to Art. 8 Brussels IIa in Spain furthermore couldn’t be stated. The Federal Court of Justice implemented the CJEU judgment to the present case. It stays in full accordance with the judgment and therefore is correct.