Oberster Gerichtshof, Urteil vom 15/02/2006 3 Ob 242/05t
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2006:0030OB00242.05T.0215.000
Date: 2006-02-15
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82006AT0215(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The applicant obtained a judgment by the LG Amberg (DE) by which the respondent, an Austrian company, was ordered to pay. It furthermore obtained a declaration of enforceability in Austria of that judgment, which had been given in default. The respondent appealed to the OGH (AT). It asserted an infringement of public policy, on the ground that it had been impeded in its defence against the German action. It alleged that it did not have sufficient funds to mandate a German attorney and had thus applied for the assignment of an attorney by way of legal aid. The German court had dismissed the application, as legal aid could not be granted to a company having its seat in another State and had instead acceded to the claim by default judgment.
The OGH (AT) dismisses the appeal. It holds that the appellate court justly found that the respondent merely contested in a general way that the German court had denied legal aid. However, the respondent failed to prove that it actually met the prerequisites which would have entitled it to legal aid. A significant infringement of public policy within the meaning of Article 34(1) Brussels I Regulation cannot already be assumed where an infringement of the right to defend oneself, in general, seams possible. Rather, it has to be specifically proven that the recognition and enforcement of the foreign judgment infringes public policy. This can only be assumed where in fact all asset- and claim-related prerequisites for the grant of legal aid are fulfilled. Where the respondent is economically able to afford an attorney, or where legal aid has to be denied due to no prospect of success of the legal action, an infringement of public policy cannot be assumed. The respondent failed to substantiate his claim in this respect.