Oberster Gerichtshof, Urteil vom 14/12/2010 3 Ob 215/10d M***** S.r.l. / T*****handelsgesellschaft mbH
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2010:RS0126516
Date: 2010-12-14
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82010AT1214(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The applicant applied with respect to the respondent for the issue of an Austrian declaration of enforceability of a judgment of the Tribunale of Udine (IT) and a decision on costs of the Italian appellate court upholding the former. The respondent claimed that it did not share the identity of the judgment debtor in the Italian judgments. Also, with regard to the judgment creditor, it did not concern the original claimant, who was a sole trader, but rather a company. The Landesgericht of Salzburg (AT) issued the declarations of enforceability upon appeal. It stated that the applicant had been able to prove by producing excerpts from the commercial register and an official confirmation of an Austrian notary that the respondent was the judgment debtor in the Italian judgments. With respect to the applicant, it arises out of the judgments of the Italian appellate court and the final instance Corte di cassazione (IT) that during the proceedings the original claimant incorporated the sole trading enterprise run by him into the applicant, a capital company under Italian law. Therefore, it is clear that both parties correspond to the parties in the Italian proceedings. The respondent lodged an appeal on a point of law to the OGH (AT).
The OGH dismisses the appeal and upholds the judgment of the Landesgericht of Salzburg. The question of who is party to the proceedings for a declaration of enforceability must be determined by way of interpretation of the judgment of the court of origin. In this regard, the findings of the Landesgericht regarding the identity of the judgment debtor cannot be criticised. Pursuant to Article 31 Brussels Convention, the right to apply for a declaration of enforceability is open to all parties who may invoke the judgment in the State of origin. Included thereunder is the legal successor of the judgment creditor who has acquired the awarded claim from him.