Oberster Gerichtshof, Urteil vom 20/11/2001 3 Ob 250/01p
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2001:RS0116062
Date: 2001-11-20
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82001AT1120(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff domiciled in Germany requested default judgements given by a German court to be declared enforceable in Austria, pursuant to Article 47(1) Brussels Convention. The court of first instance dismissed the claim, because it considered that the service by post of the judgment on the adverse party had not been effected properly, as the required instructions lacked. The court of appeal affirmed this decision since the Hague Convention on civil procedure of 1954, according to which the service should have been effected by way of legal assistance, shall be applied in priority.
The OGH (AT) finds on the one hand that the required service of the executory titles according to Article 47(1) Brussels Convention is effected pursuant to the law of the State in which the judgment was given. However, the Hague Convention on Civil procedure of 1954 shall only be applied to services abroad, while in the present case it concerned a fictive inland service. The latter shall only be determined according to the German law into force and is besides compatible with EC Regulation no n° 1348/2000 of 29 May 2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters, which came into force in the meantime. The declaration of enforcement abroad, in this case in Austria, can only be opposed if the type of service chosen (by post) infringes the public policy at that place according to Article 27(1) Brussels Convention. This would be the case here if the legal hearing of the adverse party had been breached. On the basis of the proper service and within the time limits of the document instituting the proceedings, the rights for defence of the latter were not hindered before the German court; she had rather been able to inform herself on the important German legal situation without further instructions being required.