Oberster Gerichtshof, Beschluß vom 31/01/2007 3 Ob 9/07f
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2007:0030OB00009.07F.0131.000
Date: 2007-01-31
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82007AT0131(01)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The respondent was ordered to pay a certain amount to the applicant by default judgment of the Rechtbank 's-Hertogenbosch (NL). The statement of claim was not served on the respondent until after the hearing, upon which the default judgment was issued. The judgment itself was not served on it. The applicant obtained an enforcement order in Austria. The latter was served on the respondent. Upon the latter's appeal, the appellate court dismissed the application for a declaration of enforceability. By judgment of 30.06.2005 - 3 Ob 152/05g - the OGH (AT), to which the applicant had appealed, referred a question to the ECJ for a preliminary ruling regarding the interpretation of the prerequisite within Article 34(2) Brussels I Regulation that the defendant failed to commence proceedings to challenge the judgment when it was "possible for him to do so". The ECJ held in its judgment of 14.12.2006 - 283/05 - ASML Netherlands BV, that it has to be interpreted as meaning that the judgment was served on him in sufficient time to enable him to arrange for his defence.
Pursuant to the ECJ's judgment, the OGH (AT) had to determine the appeal against the dismissal of the applicant's application for an enforcement order by the appellate court. The OGH holds that the Netherlands judgment was not served on the respondent and that the latter did not acquire knowledge of the judgment until service of the Austrian enforcement order, almost half a year after the issuance of the judgment and the declaration of enforceability in the Netherlands. As the judgment was not served on the respondent, the latter did not have the possibility to appeal it. Thus, the OGH does not recognise the Netherlands judgment according to Article 34(2) Brussels I Regulation.