Oberster Gerichtshof, Beschluß vom 12/07/2000 # 3 Ob 287/99y
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2000:0030OB00287.99Y.0712.000
Date: 2000-07-12
Based on: Provisional data
Subject matter: Lugano Convention
Origin: Austria

82000AT0712(02)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The applicant applies for the enforcement in Austria of an enforcement order (“Vollstreckungsbescheid”) rendered by a German court. He presents a confirmation by the court clerk of the original court, according to which the payment order (“Mahnbescheid”) was “formally” served on the respondent on a certain date. The court of first instance dismissed the application for a declaration of enforcement, on the grounds that it could not determine if service had been accomplished according to the German rules on service. The court of appeal confirmed the judgment, pointing to Article 46(1) Lugano Convention.
The OGH (AT) holds that the German payment order (“Mahnbescheid”) constitutes the document instituting the proceedings. Its proper and timely service has to be reviewed ex officio, according to Article 27(2) Lugano Convention. This requires primarily, according to Article 46(2) Lugano Convention, a document about the process of service or a confirmation which indicates the type of service. According to Article 48(1) Lugano Convention, the court may accept equivalent documents, in order to avoid inordinate formalities. Even though the confirmation by the court clerk of the original court does not indicate to whom and in which way the claim was actually served, it can be regarded as equivalent. It indicates that service was accomplished in the proper way on a certain date. The actual information within an affidavit of service would not offer a better possibility for verification. Therefore, the “Vollstreckungsbescheid” is do be declared enforceable in Austria.