Oberster Gerichtshof, Urteil vom 30/05/2006 3 Ob 49/06m
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2006:RS0121002
Date: 2006-05-30
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82006AT0530(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
An Italian company had obtained in Italy a payment order (“decreto ingiuntivo”) against an Austrian company, the defendant to the enforcement, which was declared provisionally enforceable. The payment order was declared enforceable in Austria by the Bezirksgericht Innere Stadt of Vienna (AT). In appeal proceedings, this decision was confirmed. Thereupon the defendant to the enforcement lodged an appeal in cassation.
The OHG (AT) dismisses the appeal in cassation. It finds that the recognition of the payment order does not breach the public policy in the sense of Article 34 Brussels I Regulation. As laid down in Article 34 Brussels I Regulation, this concerns the public policy of the State of enforcement concerned that is Austria. According to the jurisprudence of the OGH, a breach of public policy is only to be affirmed where the recognition of a foreign decision would be completely irreconcilable with the Austrian legal order. Moreover since Article 34(1) Brussels I Regulation only applies in cases in which recognition is “manifestly” contrary to public policy, this condition is only met in exceptional cases. There is no reason why this should be the case where a decision having no legal force but which is (at least) provisionally enforceable in another Member State shall be declared enforceable. Article 46 Brussels I Regulation allows in such a case a compensation for the enforcement of foreign decisions, which do not have yet legal force, by way of protective measures for the debtor, this is done to avoid the irreversible consequences of the enforcement. Furthermore, in this case, a stay of the proceedings according to Article 46(1) Brussels I Regulation, which refers specially to the appeals set out in Articles 43 and 44 Brussels I Regulation, is not possible since such proceedings come to an end with the dismissal of the appeal in cassation.