Oberster Gerichtshof, Urteil vom 14/12/2010 3 Ob 219/10t C***** / K*****
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2010:0030OB00219.10T.1214.000
Date: 2010-12-14
Subject matter: Lugano Convention
Origin: Austria

82010AT1214(52)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The judgment debtor, a German citizen, was obliged by judgment of a Swiss court to pay the judgment creditor maintenance. Receipt of the claim and the invitation to hearing were both communicated to the judgment debtor through publication in the Official Journal after service remained unsuccessful as a result of unknown residence. The judgment creditor requested a declaration of enforceability of the judgment before an Austrian court, which was granted. The appeal lodged against this decision was allowed. The judgment creditor appealed to the Oberste Gerichtshof (AT).
The Oberste Gerichtshof dismisses the appeal as inadmissible because binding Supreme Court jurisprudence already exists which answer the legal questions raised. The title to be enforced is to be treated as a judgment in default. Matters concerning child support under family law are to be qualified as civil matters in the meaning of Article 1(1) of the Lugano Convention and fall under the material scope of application of the Convention under Article 5(2). The second instance court has explained that fictitious service cannot be on time without the appearence of further facts in the meaning of Article 27(2). According to ECJ jurisprudce, one fact that my transform a fictitious service of process into a timely one is if the defendant himself is responsible for not receiving a duly served document initiating proceedings (ECJ C-49/84, Debaecker). With this in mind, the court of second instance engaged in extensive and documented deliberations as to why such an exception cannot be assumed from the documents produced.