Oberster Gerichtshof, Urteil vom 26/09/2003 3 Ob 142/03h
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2003:RS0102925
Date: 2003-09-26
Subject matter: Lugano Convention
Origin: Austria

82003AT0926(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The Austrian court issued a declaration of enforceability in Austria of a French order for payment. The appellate court upheld this decision as, in particular, the requirements under Article 46 to 48 Lugano Convention were satisfied. The defendant, who was ordered to pay, appealed, claiming inter alia that it had not been clarified whether he could plead in proceedings for a declaration of enforceability that he had already made the payment due.
The Oberste Gerichtshof (AT) first cites the ECJ judgment from 4 February 1988 (145/86 – Hoffmann/Krieg). According to this judgment, any objections under national law to the enforcement of a foreign judgment within the scope of applicability of the Brussels Convention/Lugano Convention are excluded if they could have already been raised when the judgment was certified as enforceable. Payment of the sum sought could only be raised as an objection against enforcement by way of an opposition action, according to the Austrian execution law, which is applicable in the present case. Therefore, according to Article 36 Lugano Convention, this objection may be made in an appeal against a declaration of enforceability.