Oberster Gerichtshof; 2017-10-25; 3 Ob 140/17k
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2017:0030OB00140.17K.1025.000
Date: 2017-10-25
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82017AT1025(51)_ENG_SUMJURE
JURE summary
JURE summary
The plaintiff in this case requested that a declaration of enforcement be issued (of foreign judgment) and subsequently enforced regarding his claims against the defendant. The basis for the request was a default judgment issued by a Slovenian court on 26 January 2004.
The Bezirksgericht Graz (hereinafter ‘the Court of First Instance’) declared the Slovenian default judgment enforceable and approved the enforcement of the claim.
At the appeal of the defendant, the Landesgericht für Zivilrechtssachen Graz (hereinafter ‘the Court of Appeal’) changed the decision of the Court of First Instance in such a way that the original request was rejected. The document to be declared enforceable was a judgment of 26 January 2004, issued on the basis of an action filed on 27 October 2003. However, Slovenia acceded to the European Union on 1 May 2004. The decisive transitional provisions, according to the Court of Appeal, are those of Article 66 of the Brussels I Regulation (1). The Court of Appeal pointed out that the Court of Justice of the European Union (CJEU) (2) interpreted Article 66(2) of the Brussels I Regulation as meaning that: ‘for that Regulation to be applicable for the purpose of the recognition and enforcement of a judgment, it is necessary that at the time of delivery of that judgment the Regulation was in force both in the Member State of origin and in the Member State addressed’. However, this was not the case here and the request was rejected due to the absence of a legal basis and a lack of principle of mutuality. The Court of Appeal suggested that an appeal on a point of law would be possible in this case.
The plaintiff appealed the decision of the Court of Appeal before the Obersten Gerichtshof der Republik Österreich (hereinafter ‘the Supreme Court’) and sought the recovery of the first instance decision.
The Supreme Court found no persistent significant legal questions to be answered in the plaintiff’s statement, as the only relevant legal question had already been answered by the CJEU. Therefore, the appeal on a point of law was rejected.
It was undeniable that the Brussels I Regulation in Slovenia entered into force only on the day of its accession to the European Union (1 May 2004). However, both the request made before the Court of First Instance as well as the judgment to be declared enforceable were taken before the Brussels I Regulation entered into force in Slovenia.
Article 66(2) of the Brussels I Regulation extends the temporal scope of this Regulation. The prerequisite for such extension is an existence of a judgment adopted after its entry into force. Otherwise, the Brussels I Regulation would not apply.
As Court of Appeal had correctly stated, the CJEU in Case C-514/10 held that the Brussels I Regulation is applicable to the recognition and enforcement of a judgment only if 'at the time of delivery of that judgment the Regulation was in force both in the Member State of origin and in the Member State addressed'.
The Supreme Court rejected the appeal on a point of law brought by the plaintiff as inadmissible.
(1) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Judgment of the Court of Justice of 21 June 2012, Wolf Naturprodukte GmbH v SEWAR spol. s r.o., C-514/10, ECLI:EU:C:2012:367.