EUPillar BGH, 10.12.2014 – XII ZB 662/13

Summary

The parties argued on an amendment of maintenance claims which were stated by an Irish court. The German courts had granted the raise of the amount according to the applicant’s submission. The German Federal Supreme Court held that the modification of maintenance claims was solely possible if the claims could be recognised before German courts. This incident recognition was according to Art 72 (2) Maintenance Regulation to be examined under Art 23 et seqq Maintenance Regulation as the amendment procedure had been initiated after 18 June 2011. The court discussed the question whether the amendment of decisions on maintenance obligations in one state required that this possibility was given under the law of the state of origin, too. However, it did not deem it necessary to decide the issue as the Irish law in general allows modifying maintenance decisions. The court further held that the regulations governing the amendment of maintenance claims were to be deduced from the law governing these claims. According to Art 3 (1) Hague Maintenance Protocol German law was decisive. The Court stated that the change in the law governing the maintenance claims (from Irish to German law) due to the building of a new habitual residence in Germany led to the fact that the second court was not bound by the facts determined by the first state court. This consideration was justified with the fact that the Irish court would have to assess the issue pursuant to a change in the decisive law (see Art 3 (2) Hague Maintenance Protocol) under German law, too, if it was charged with the amendment instead of the foreign court. The court also pointed to an opinion in scientific literature, according to which the mere change of the law governing the claims cannot suffice to justify a different assessment of the amount of claims. This opinion states that in that way the principle of the révision au fond could be violated and forum shopping could be promoted. The court however did not decide on this aspect.