Oberster Gerichtshof, Urteil vom 21/07/2004 3 Ob 87/04x
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2004:RS0119200
Date: 2004-07-21
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82004AT0721(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The Austrian court of first instance declared a French judgement, which was not personally served on the indebted Austrian company, enforceable in Austria. The original French court, on the basis of Article 54 and 58 Brussels I Regulation, had affirmed that its judgement was enforceable in France, even though in France the declaration of enforceability would be required to be served personally. The court of appeal affirmed the declaration of enforceability in Austria.
The OGH (AT) confirms this and notes that Article 38 Brussels I Regulation only determines the proceedings for authorisation of compulsory enforcement of foreign enforceable judgments and does not concern the enforcement as such, as the ECJ (ECJ C-267/97) clarified with regard to the preceeding provision, Article 31(1) Brussels Convention. Since enforcement proceedings are carried out according to the national law of the enforcing state, it is irrelevant if the judgement can also be enforced in the State of origin. If, as in the present case, the enforcement in France is hindered due to the lack of personal service of the judgment, this only concerns pottential enforcement proceedings in France. This however is irrelevant for the Austrian enforcement proceedings, as it does not concern enforceability as such. Since personal service is not required in Austria, enforcement shall be allowed.