Oberster Gerichtshof, Urteil vom 03/03/2010 3 Nc 8/10x
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2010:0030NC00008.10X.0303.000
Date: 2010-03-03
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82010AT0303(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The petitioners, an American company and a German company, obtained a binding default judgment from the Handelsgericht of Vienna (AT), under which the respondents, a Dutch company and a person with his habitual residence in the Netherlands, received a cease and desist order, as well as an order to disclose information. The petitioners request that an Austrian enforcement court take jurisdiction over the case, as the obligors under the order have not fulfilled their duties to disclose information. As no party is domiciled or has its habitual residence in Austria, the courts of Austria do not have jurisdiction. The enforcement of title in the Netherlands would however be unduly burdensome because the Austrian order to disclose information identified neither the grounds nor the amount of a penalty. Under Dutch law, enforcement of a claim arising out of a failure to comply with an order requires at least the mere threat of a penalty fine in the order. As the default judgment contains no such threat, the motioning parties' efforts to obtain enforcement in the Netherlands will fail.
The OGH (AT) rejects the petition for designation of the national court having jurisdiction. The position of the petitioners, that enforcement in the Netherlands would be unduly burdensome because Dutch courts would reject such a motion, runs contrary to conventional legal wisdom. Subsequently, in States that by default already stipulate in the judgment for the payment of a penalty fine to the plaintiff in the event that compliance is not delivered timely (“astreinte”) or in States where the threat of a penalty fine is set forth in the judgment (“dwangsom”), the enforcing court must, in the way of approximation, amend or supplement the order so as to align the domestic rules of enforcement with the obligations regarding recognition of judgments contained in Brussels I Regulation.