Oberster Gerichsthof, Beschluß vom 20/09/2000 3 Ob 179/00w
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2000:RS0114248
Date: 2000-09-20
Subject matter: Lugano Convention
Origin: Austria

82000AT0920(01)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff, a German lawyer, provided legal work before a German court for a succession, for which the defendant was determined as heir. In the German legal proceedings, the defendant was sentenced to pay the remuneration of the plaintiff. The latter requested that this decision, which was served on the defendant via the placard on the court’s notice board on the ground on his unknown address, be declared enforceable in Austria. The court of first instance dismissed this request, since it considered this type of service as insufficient. The court of appeal however considered that according to Article 27(2) Lugano Convention, a revision was necessary to determine whether the defendant was prevented from assuring his defence on the ground of exceptional circumstances despite of a proper service.
The OGH (AT) finds that fictive services as in this case the placard on the court’s notice board shall also be considered as proper in the sense of Article 27(2) Lugano Convention. However for annex decisions, as for instance a decision for the determination of the costs, recognition cannot be refused on the basis of Article 27(2) Lugano Convention. The determination of a remuneration for lawyer’s services as according to the German law (§ 19 BRAGO) does not only determine the amount of an already existing title but constitutes another matter in dispute concerning other persons than the ones in the original proceedings, so that it constitutes a proper action. For this reason, according to Article 46(2) Lugano Convention the proper service of the claim for determination of the remuneration to the defendant needs first to be proved and it also needs to have taken place within the time limits. This shall be clarified in the continued proceedings before the court of first instance.