The Regulation (EU) 606/2013 stipulates rules for the mutual recognition of foreign protective measures between the EU Member States. The procedure for enforcement is subject to the law of the requested Member State under Article 4 (5) of the Regulation. To that effect, a protective measure ordered in another Member State will be enforced under the law of the enforcing State.[1]
In 2014, an amendment to the Austrian Enforcement Act introduced accompanying regulations (§§ 420 and 421 Austrian Enforcement Act; henceforth: EO) in order to regulate jurisdiction and the procedure for modifying protective measures in Austria in a consistent manner. According to § 420 EO, the competent district court for the enforcement of the protective measure is the court where the protected person has his or her general place of jurisdiction. If the person does not have his or her general place of jurisdiction in Austria, the district court “Inner City Vienna” (Bezirksgericht Innere Stadt Wien) is competent.[2]
The enforcement of protective measures may be carried out by the way of execution proceedings. In this case, an enforcement by omission in accordance with § 355 EO comes into consideration. This requires an application (see § 420 (1) Z 1 EO). The enforcement by Austrian security authorities is only possible if the protective measure provides for it.[3]
In Austria, a translation or transcript of the original document is necessary. If the translation of the document is not complete, the responsible court may require the submission of a complete translation by issuing an improvement order. It is possible as well to request the deposit of an advance on the costs of the domestic translation. [4]
In Austria, the costs of the proceedings must be covered by the protected person. If, however, they were necessary for the appropriate enforcement of legal rights, the costs shall be reimbursed by the endangering person.[5]
The protective measure shall be modified in accordance with Art 11 of the Regulation if this is necessary to give effect to the measure. In Austria, the district court where the protected person has his/her general place of jurisdiction is responsible for the modification (see § 420 (1) Z 2 EO). The protected person must apply for the desired adaptation. The decision on the adaptation is taken without prior hearing of the endangering person, but the latter must be informed of any adaptation of the protection measure.[6]
The decision to modify the protection measures may be challenged by both parties: the protected person and the endangering person (see Art 11 (5) of the Regulation). In Austria, this is provided for with an objection procedure (Widerspruch according to § 397 (2) EO). In addition, both parties have the right of appeal (Rekurs) against the decision on adaptation. On application by the endangering person, the recognition or enforcement of the protective measure may be refused. In Austria, the district court which has ordered the enforcement of the measure or authorized its execution is responsible for this decision.[7]
[1] Neumayr/Nunner-Krautgasser, Exekutionsrecht4 (2018) 350.
[2] Neumayr/Nunner-Krautgasser, Exekutionsrecht4 350.
[3] Neumayr/Nunner-Krautgasser, Exekutionsrecht4 350 f.
[4] Neumayr/Nunner-Krautgasser, Exekutionsrecht4 351.
[5] Mohr, Die europäischen Schutzmaßnahmen: Anerkennung und Vollstreckung von einstwilligen Verfügungen zum Schutz vor Gewalt, iFamZ 2014, 221 (226).
[6] Neumayr/Nunner-Krautgasser, Exekutionsrecht4 351.
[7] Neumayr/Nunner-Krautgasser, Exekutionsrecht4 352.