Oberster Gerichtshof, Beschluß vom 24/06/1998 3 Ob 129/98m
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:1998:RS0110234
Date: 1998-06-24
Subject matter: Lugano Convention
Origin: Austria

81998AT0624(03)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The applicant brought an action before the Landgericht of Berlin (DE) against S ... Ltd, a company with its seat in Berlin. During the proceedings, the seat of the respondent was relocated. The respondent informed the court of the address of its directors, both of whom were domiciled in Austria. This was also the address of the Austrian S ... Ltd, the parent of respondent company. The Landgericht of Berlin found against S ... Ltd with reference to its Austrian address. The applicant applied for a declaration of enforceability of the judgment in enforcement proceedings against the Austrian S ... Ltd. On appeal by the Austrian S ... Ltd, the Landesgericht of Linz (AT) annulled the previously issued declaration. The applicant then brought an appeal before the OGH.
The OGH upholds the decision of the appellate court. The court determines that the Lugano Convention applies to the grant of the declaration of enforceability. The court of enforcement must confirm whether the party against whom enforcement is sought is the same party against whom the judgment was given in the foreign judgment. This must be determined by an interpretation of the foreign decision which must exclude any reasonable doubts. The court of enforcement may not resolve any doubts by its own decision as that is contrary to Article 34(3) Lugano Convention, which forbids the review of foreign judgments as to substance. According to the findings of fact of the appellate court, it can not be determined beyond doubt whether the German judgment was against the German subsidiary company or the Austrian parent company. Therefore the Austrian declaration of enforcement cannot be issued. The applicant bears the burden of proof.