Oberster Gerichtshof, Urteil vom 20/04/2010 4 Ob 46/10h
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2010:0040OB00046.10H.0420.000
Date: 2010-04-20
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82010AT0420(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
An application seeking recognition of a judgment of a Romanian court on the divorce of the applicant’s and respondent’s marriage in Austria was rejected at first and second instance on the ground that the applicant failed to produce the necessary certificate of the legal effect of the judgment to be recognised within the meaning of Article 39 of the Regulation No. 2201/2003 (“Brussels II bis”) despite a deadline for their production having been specified. The applicant lodged an appeal to the Oberste Gerichtshof (AT).
The Oberste Gerichtshof dismisses the appeal as inadmissible. It is settled case law that, despite a lack of express case law on a specific case constellation, a relevant question of law does not arise if the law itself stipulates a clear and unambiguous provision. With respect to the question regarding the obligation to produce documents under Article 39 of the Brussels II bis Regulation, which the applicant considered relevant to the outcome, this is the case. Articles 39, 38(1) and 37(1) Brussels II bis Regulation state unambiguously that it is the task of the party seeking recognition not only to produce a copy of the judgment to be recognised but also to produce a certificate stating that it is not subject to change. There is no legal basis for this to be obtained of the court’s own motion (for example by way of legal assistance). A fresh application upon collecting all the relevant documents is permissible.