Oberster Gerichtshof; 2015-04-21; D., s.r.o.; R., S.A.; 3 Ob 75/14x
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2015:0030OB00075.14X.0421.000
Date: 2015-04-21
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82015AT0421(51)_ENG_SUMJURE
JURE summary
JURE summary
In the Court of First Instance (Bezirksgericht Innere Stadt Wien), a Slovak private limited company (the “applicant”) sought the enforceability of the decision of the district court Košice II (Slovakia) against a Romanian public limited company (the “respondent”), which obliged the defendant to deposit the amount of USD 2,400,000 in the custody of the district court of Košice II until the final conclusion of the case.
The respondent is a subsidiary of a public limited company based in Austria with whom the respondent has a separate account. Thus, in the meaning of Article 39(2) of the Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (“Brussels I Regulation”), in the version valid until 09.01.2015, the jurisdiction of the Court of First Instance is justified.
The Court of First Instance rejected the lawsuit due to a lack of jurisdiction. That court had jurisdiction where the first decision in the foreclosure was to be given, in the present case, where the foreclosure approval is to be given. As the foreclosure approval is to be served to the defendant in Bucharest, the Court of First Instance had no jurisdiction.
Upon the applicant’s appeal, the Court of Appeal (Landesgericht für Zivilrechtssachen Wien) declared the decision of the district court Košice II to be enforceable in Austria. According to Article 39(2) of the Brussels I Regulation, the territorial jurisdiction is determined at the place of the respondent’s residence or at the place where the enforcement should be performed. Considering the respondent’s residence, only the second alternative may be considered. According to established case law, assets consisting of a bank account in Austria to enforce the foreclosure are to be considered. Thus, the Court of First Instance was competent.
The respondent’s extraordinary appeal on points of law is directed against the decision of the Court of Appeal. Furthermore, the respondent requests the applicant be required to impose a security deposit according to Article 46(3) of the Brussels I Regulation.
In the decision, the Oberster Gerichtshof (“OGH”) leads that the appeal on points of law is permissible for clarification, but not entitled.
The Court of Appeal has summarized the territorial jurisdiction of the Court of First Instance properly according to Article 39(2) of the Brussels I Regulation. The applicant referred to the place where the foreclosure should be enforced, in this case in Austria.
The respondent requested to apply a reasonable security deposit in the amount of EUR 1_813_812.19 on the applicant. The security deposit’s purpose is to compensate for the debtor’s risk associated with the enforcement of a not yet enforceable foreign title prior to the declaration of enforceability. The nature and amount of the security deposit depends on the law of the executing state.
Considering that the respondent can be hit only by a potential interest loss (from depositing a high amount in the custody of the court), but that there are no risks otherwise, the applicant's security deposit will be set at EUR 200,000.
The OGH did not follow the defendant’s extraordinary appeal on point of law. The applicant is obliged to pay a security deposit of EUR 200,000 to the Court of First Instance. Otherwise, decisions on the foreclosure are not to be given.