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European Communities L-2925 Luxembourg |
PROTOCOL 2 ANNEXED TO THE LUGANO CONVENTION |
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Library, Research and Documentation |
Recent case-law relating to the Brussels and Lugano Conventions on Jurisdiction and the Enforcement of Judgments in Civil and Commercial matters |
Brussels Convention |
| Court | : | Oberster Gerichtshof |  |
| Date | : | 09.04.2002 |
| Number | : | 4 Ob 7/02m |
| Publication | : | Zeitschrift
für Rechtsvergleichung, internationales Privatrecht und
Europarecht 2003 p. 111-114 |
| Keywords | : |
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| E-16.05 | Brussels Convention - Exclusive jurisdiction - Enforcement of judgments -
Meaning - Action seeking a declaration of cessation of entitlement to
maintenance payments where there is an enforceable decision ordering the
debtor to pay that maintenance as a result of an action brought within the
scope of the Convention - Excluded |
| Summary | : | The international jurisdiction of the courts of a
Contracting State is not established under the Brussels Convention as
regards the pursuit of an action seeking a declaration of cessation of
entitlement to maintenance payments where, as a result of an action in a
civil matter, within the meaning of Article 1 of the Convention, those
courts have issued a directly enforceable decision ordering payment of the
maintenance in question. Jurisdiction in respect of an action for
cessation of entitlement must be determined independently in accordance
with Articles 2 or 5(2) and, where applicable, 16(5) of the Convention. In that regard, Article 16 must not be given a broader interpretation than its purpose requires, since its effect is to deprive parties of the choice of legal forum that they would otherwise have, and, in certain circumstances, to compel them to pursue an action before a court which is not the court for the place of domicile of any of the parties. The fundamental purpose of according exclusive jurisdiction to the courts of the place of enforcement of the judgment is that it is solely for the courts of the Contracting State on whose territory the enforcement is sought to apply the rules relating to the conduct, on that territory, of the authorities responsible for enforcing the judgment. Similalry, the report drawn up by the committee of experts who drafted the Convention makes clear that "proceedings concerned with the enforcement of judgments" means proceedings which can arise from "recourse to force, constraint or distraint on movable or immovable property in order to ensure the effective implementation of judgments and authentic instruments" and that the "[p]roblems arising out of such proceedings come within the exclusive jurisdiction of the courts of the place of enforcement". It follows that such proceedings must relate directly, and not just indirectly, to enforcement. Therefore, an action seeking a declaration of cessation of entitlement to maintenance payments (an action for a negative declaration) which does not challenge the enforcement of a judgment but, on the contrary, the substantive enforceable claim itself, does not come within the scope of Article 16(5) of the Convention. |
| Annex | : |
Judgment in original language (German) |
