Oberster Gerichtshof, Urteil vom 20/10/2004 3 Ob 189/04x
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2004:0030OB00189.04X.1020.000
Date: 2004-10-20
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82004AT1020(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The applicant, an Italian company, requested a declaration of enforceability of an Italian payment order ("decreto ingiuntivo"). On its application, the court of first instance declared the order enforceable in Austria. The court of appeal confirmed the decision, however, it ordered that a guarantee be given for the enforcement. The applicant appealed the decision.
The OGH (AT) dismisses the appeal. The court had earlier decided (3 Ob 145/03z) that the necessity of res judicata of the decision sought to be enforced, required under the Convention on the Contract for the International Carriage of Goods by Road (CRM), does not prevent a declaration of enforceability in Austria of an interim Italian decision, under the Brussels Convention. The same applies to Article 71 Brussels I Regulation which is almost identical to Article 57 Brussels Convention. As the recognition rule of Article 31(3) CMR does not apply to interim decisions according to Article 31(4) CMR, the provisions of the Brussels I Regulation, which lack such a distinction, and which therefore are also to be applied to interim decisions, are applicable here. Article 46 Brussels I Regulation provides for the staying of a declaration of enforcement proceedings until the termination of the proceedings pending in the Member State of origin. According to this article, a decision which, in dealing with an appeal against the admissibility of the enforcement of a judicial decision in another Contracting State, rejects the stay of proceedings, and orders that a guarantee be given, is not a decision passed on the appeal, and therefore can not be challenged by an appeal in cassation or similar appeal.