Oberster Gerichtshof, Urteil vom 24/11/2005 3 Ob 209/05i
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2005:RS0120346
Date: 2005-11-24
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82005AT1124(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The creditor obtained a provisionally enforceable payment order by the Italian Tribunale of Velletri (IT) against the debtor as well as an Austrian declaration of enforceability of the latter. On the basis of that declaration, several liens were established on real properties of the debtor. In the Italian proceedings, the debtor had objected to the order; the final decision of the Italian court was still pending. The debtor appealed against the declaration of enforceability, but the appeal was dismissed. However, the appellate court ordered, according to Article 46(3) Brussels I Regulation, that the enforcement was conditional on the provision of security. This decision became final. As the creditor failed to provide security, the debtor sought the stay of the enforcement. An order allowing the stay by the court seised with the enforcement was overruled by the appellate court. The debtor appealed to the OGH (AT).
The OGH (AT) dismisses the appeal. It states that on the one hand, in order to protect the debtor, Article 46(3) Brussels I Regulation allows to make the enforcement of a judgment, which is not yet final in the original State, conditional on the provision of security by the creditor. On the other hand, Article 47 Brussels I Regulation allows the creditor to avail himself of provisional including protective measures during the proceedings for a declaration of enforceability. This possibility is not restricted by making the enforcement of a judgment, which is not yet final in the original State, conditional on the provision of security. Where the creditor is ordered to provide security, only his possibility of further enforcements and especially of acts of disposition is made conditional of the latter. Already ordered enforcement measures remain unaffected.