OGH; 2019-04-25; 4 Ob 230/18d
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2019:0040OB00230.18D.0425.000
Date: 2019-04-25
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82019AT0425(51)_ENG_SUMJURE
JURE summary
JURE summary
The Republic of Slovenia (hereinafter ‘the plaintiff’) requested the repayment of the proceeds of government bonds disbursed from seven natural persons domiciled in Austria (hereinafter ‘the defendants’) on the grounds of non-bona fide acquisition.
The predecessor of the defendants owned a weaving mill in Slovenia, which was confiscated after the Second World War by decision of a confiscation committee and nationalized. In 2002, the competent district court in Slovenia granted the defendants’ application for the restitution of assets. The compensation took the form of government bonds of the Republic of Slovenia in two tranches (2003 and 2004). In 2004, however, the Vrhovno sodišče Republike Slovenije (hereinafter ‘the Supreme Court of Slovenia’) annulled the first and second instance decisions on compensation. Later, the Supreme Court of Slovenia ruled that the administrative bodies and not the courts should have ruled on the defendants’ claim. Therefore, the plaintiff sought the reimbursement of the compensation paid.
The Landesgerichts Salzburg (hereinafter ‘the Court of First Instance’) upheld the action and granted the claims to the extent that they were justified.
The Oberlandesgericht Linz (‘the Court of Appeal’) upheld the judgment of the Court of First Instance and ruled that the ordinary appeal on the question of public order would be admissible with regard to the excessive duration of the Slovenian proceedings.
In their appeals before the Obersten Gerichtshof der Republik Österreich (hereinafter ‘the Supreme Court’), the defendants claimed that the decision of the Slovenian Supreme Court was contrary to public policy.
The lower courts correctly assessed that the Brussels I Regulation (1) does not apply. The last instance decision was issued before Slovenia's accession to the European Union on 1 May 2004. The Regulation does not apply retroactively.
The lower courts rightly considered that the change of the case law alone does not constitute a violation of Austrian public order. In the Austrian legal system, it is also possible that the Supreme court annuls an enforceable decision and thus removes the legal basis for the payment already made. Whether or not the Supreme Court of Slovenia has ruled correctly in terms of content does not have to be examined in the Austrian proceedings.
Nor can the defendants rely on the argument that the possibility to run into serious financial difficulties due to repaying the benefits already paid constitutes an abuse of rights. Since the legal basis for the compensation has ceased to exist, it is not certain whether the defendants’ claim will be recognised again. The plaintiff has a logical interest in reclaiming a substantial asset. The same principle also applies in Austrian law. The donor of property can reclaim it from the recipient if the legal reason to keep it ceases.
The Supreme Court of Slovenia did not deny defendants' right to compensation. Rather, it was a decision on the lack of jurisdiction of the courts. The proceedings were to be continued before the competent Slovenian authority as administrative proceedings.
There had been no violation of public policy or abuse of justice.
The Supreme Court did not follow the defendants’ appeal.
(1) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.