Oberster Gerichtshof; 2016-08-24; 3 Ob 119/16w
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2016:0030OB00119.16W.0824.000
Date: 2016-08-24
Subject matter: Lugano Convention
Origin: Austria

82016AT0824(51)_ENG_SUMJURE
JURE summary
JURE summary
At the request of a public limited company (hereinafter the "Operator"), the Court of First Instance declared a judgment by default of a London court against a natural person (hereinafter "Obligated") to be enforceable for Austria and granted the execution of the movable object and the claim to obtain the enforceable claim.
The Court of Appeal (Landesgericht für Zivilrechtssachen Wien) did not follow the Obligated’s appeal and decided that the ordinary appeal on points o­f law was not admissible in the absence of a significant legal issue.
The Obligated’s extraordinary appeal on points of law was aimed against the declaration of enforceability and the granting of the execution.
The Oberster Gerichtshof (hereinafter the "OGH") lead in its decision that the extraordinary appeal on points of law was inadmissible for the following reasons.
The exemption (¹) on which, among other things, the Obligated based the appeal, applies to decisions on the granting or refusing of a declaration of enforceability only and applies to refusing decisions on the request for execution only. In this case, two instances supported the decision.
The Obligated further mentioned two supposedly significant legal questions.
One question was if the period that the Obligated was entitled to him by Austrian law to participate in the title procedure was normative. However, this question has been clarified in the OGH’s case-law already. It is undisputed that according to Article 27(2) of the Lugano Convention (²), the law of the state is applicable where the decision on the declaration of enforceability is sought.
The second supposedly significant legal question was if short periods of foreign legal systems to participate in a procedure were contrary to the Austrian legal system and thus the enforceability was to be denied in Austria.
Both questions are no significant legal issues. Instead this appeal on points of law is a violation of the Exekutionsordnung’s Eventualmaxime (³).
The Obligated claimed neither a reason to refuse the declaration of enforceability nor the delivery in undue time.
The same applies to the prevention of an expert opinion, which was referred to as null according to the Zivilprozessordnung in the appeal on points of law. An infringement of the judicial duty to guidance does not constitute a nullity, but a procedural deficiency, which was denied by the Court of Appeal however and therefore can no longer be reprimanded in a third instance.
The OGH rejected the Obligated’s appeal on points of law as inadmissible.
(¹) Article 84(4) Gesetz Nr.79/1896 vom 27. Mai 1896, über das Exekutions- und Sicherungsverfahren (Exekutionsordnung – EO).
(²) 88/592/EEC: Convention on jurisdiction and the enforcement of judgments in civil and commercial matters - Done at Lugano on 16 September 1988.
(³) Most defenses must be raised at the first possible opportunity either in the answer or by motion or are deemed waived.