Oberster Gerichtshof, Urteil vom 25/03/2004 3 Ob 20/04v
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2004:RS0118738
Date: 2004-03-25
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82004AT0325(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The court of first instance (AT) declared a judgment of the commercial court in Brussels (BE) enforceable in Austria and authorised the beneficiary of the enforcement decision to collect the claim in the amount of €53_046.72. The applicant, as a recourse, sought a stay of the proceedings for declaration of enforceability until the judgement became legally binding. The court dismissed the application and held that the applicant was barred from seeking a remedy before the OGH (AT). The applicant then appealed the dismissal of her application for a stay of the proceedings to the OGH.
The OGH (AT) confirms the court’s decision and dismisses the appeal. It holds that there are no legal remedies in a case in which the court of second instance dismisses a debtor’s application for the stay of proceedings for declaration of enforceability. The dismissal of an application to stay proceedings cannot be contested with an appeal, according to Article 44 Brussels I Regulation and Annex IV thereto. The court falls back on the jurisdiction of the ECJ, from which the inadmissibility of an appeal can be deduced. In the case C-183/90 van Dalfsen/van Loon, the ECJ held that a decision regarding the stay of proceedings was not a decision regarding the legal remedy itself and thus could not be appealed. Especially considering that the amendments aim to streamline the proceedings for declaration of enforceability, the granting of a legal remedy against the dismissal of an application for a stay would be contrary to the purposes of the Brussels I Regulation. Furthermore, the OGH states that the lack of legal effect of a decision in the originating State does not lead to a reversal of the declaration of enforceability by the court of first instance.