Oberster Gerichtshof, Urteil vom 28/01/2004 3 Ob 104/03w
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2004:RS0118680
Date: 2004-01-28
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82004AT0128(02)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The Amtsgericht of Essen (DE) ordered the debtor, domiciled in Austria, to pay maintenance to his son, domiciled in Germany, in a default judgment. The judgment was served upon him. The executed copy of the enforcement judgment, which only contained the finding of the court, had a calculation from the youth welfare office of Essen referring to the legal provision applicable in Germany in its current version attached. The claimant applied to an Austrian court for a declaration of enforceability of the decision as well as for authorisation to levy enforcement in respect of the maintenance payment in arrears. The appeal court dismissed the applications. The claimant filed an extraordinary appeal.
The OGH (AT) holds that the extraordinary appeal is admissible and founded. The foreign maintenance order fulfils the requirements of sufficient legal certainty as the maintenance sum may be determined without intermediary proceedings through consultation of the German statutory contributions regulation. However, under Article 27(2) in connection with Article 34 Brussels Convention, a decision shall not be recognised or enforced if the document instituting the proceedings or an equivalent document is not duly served in sufficient on a defendant in default of appearance as to enable him to arrange for his defence.
The executed copy of the judgment along with the grounds for the decision, submitted in the appeal proceedings, show that the defendant did not enter an appearance in the proceedings.
A certified true copy of the document which establishes that the party in default was served with the document instituting the proceedings pursuant to Article 46(2) or equivalent documents pursuant to Article 48 were not produced. The court of first instance must institute proceedings to rectify the incomplete application for a declaration of enforcement and for authorisation to levy enforcement.