Reference for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 3 May 2010 — Doris Povse v Mauro Alpago

(Case C-211/10)

(2010/C 179/41)

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Appellant: Doris Povse

Respondent: Mauro Alpago

Questions referred

Is a ‘judgment on custody that does not entail the return of the child’ within the meaning of Article 10(b)(iv) of Regulation (EC) No 2201/2003 (‘Brussels II bis’) (1) also to be understood as meaning a provisional settlement by which ‘parental responsibility’, in particular the right to determine the place of residence, is awarded to the abducting parent pending the final judgment on custody?

2.	Does a return order fall within the scope of Article 11(8) of Brussels II bis only where the court orders return on the basis of a judgment on custody delivered by that court?

If Question 1 or 2 is answered in the affirmative:

3.1.

Can the lack of jurisdiction of the court of origin (Question 1) or the inapplicability of Article 11(8) of Brussels II bis (Question 2) in the second State be relied on as against the enforcement of a judgment in respect of which the court of origin has issued a certificate in accordance with Article 42(2) of Brussels II bis?

3.2.	Or, in such circumstances, must the defendant apply for that certificate to be revoked in the Member State of origin, on the assumption that enforcement in the second State may be stayed pending the decision of the State of origin?

If Questions 1 and 2 or Question 3.1. are/is answered in the negative:

Does a judgment delivered by a court in the second State and regarded as enforceable under the law of that State, by which provisional custody was awarded to the abducting parent preclude an earlier return order made by the first State under Article 11(8) of Brussels II bis, in accordance with Article 47(2) of Brussels II bis, even if it did not prevent the enforcement of a return order made by the second State under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (the ‘Hague Convention’)?

If Question 4 is also answered in the negative:

5.1.

Can the second State refuse to enforce a judgment in respect of which the court of origin has issued a certificate under Article 42(2) of Brussels II bis if, since its delivery, the circumstances have changed in such a way that enforcement would now constitute a serious risk to the best interests of the child?

5.2.	Or must the defendant invoke that change of circumstances in the State of origin, on the assumption that enforcement in the second State may be stayed pending the decision of the State of origin?

(1) 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; OJ 2003 L 338, p. 1.