Oberster Gerichtshof, Urteil vom 11/07/2001 3 Ob 106/01m
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2001:0030OB00106.01M.0711.000
Date: 2001-07-11
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82001AT0711(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
In transnational proceedings, the service of the document instituting the proceedings was effected by way of a deemed service by public notice in accordance with para 203 ZPO (equivalent to the (presumably) German Code of Civil Procedure), since the defendant company had already been removed from the commercial register at this time. The Austrian courts had to decide whether this constituted a ground for non-recognition within the meaning of Article 27(2) Brussels Convention.
The OGH (AT) finds that for the regularity of the service in the sense of Article 27(2) Brussels Convention, the law of the State in which the decision which enforcement is sought was issued, is relevant. Apart from differing rules of the treaties, deemed services such as the public notice on the court notice board can be considered proper according to the law of the State of service. However, such a deemed service cannot be considered effected within the time limit, without further circumstances. The OGH considers that in the present case, the obliged party was not given enough time to prepare its defence since it did not have a representative at the time of the deemed service of the action.