Oberster Gerichtshof, Urteil vom 19/05/2009 3 Ob 64/09x
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2009:RS0124825
Date: 2009-05-19
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82009AT0519(52)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The court of first instance of Sosnwiec (PL) ordered the respondent in a default judgment to pay monthly child support for the applicant to the child's mother. The Bezirksgericht of Schwechat (AT) granted legal aid to the applicant and appointed a lawyer to assist the child, who applied for a declaration of enforceability in Austria.
The respondent lodged an appeal to the Landesgericht of Korneuburg (AT). He claimed that the Polish default judgment was contrary to Article 34(2) Brussels I Regulation and therefore could not be enforced in Austria. He claimed that neither the statement of claim in the original Polish proceedings nor the summons to the hearings had been properly served upon him. The Landesgericht of Korneuburg overturned the declaration of enforceability and remanded the matter back to the first court. The applicant lodged an appeal to the OGH (AT).
The OGH dismisses the appeal. It first points out that if a judgment is certified as a European Enforcement Order the regularity of the service of process in the original proceedings is no longer examined and the judgment may be enforced without a declaration of enforceability. However, the applicant has made use of the choice granted to him by Article 27 Enforcement Order Regulation 805/2004 and instead sought a declaration of enforceability under the rules of the Brussels I Regulation. The first court must examine in fresh proceedings whether a ground for refusal of recognition pursuant to Article 34(2) Brussels I Regulation arises. An error of form in service does not suffice. Instead, the ability of the respondent to mount a defence must have been reduced. In addition, it must be examined whether the respondent has made use of any possible avenues of appeal open to him in the State of origin. If he has failed to do so, a prior obstruction of his right to a defence does not suffice to refuse recognition.