Oberster Gerichtshof, Urteil vom 21/08/2003 3 Ob 145/03z
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2003:RS0117943
Date: 2003-08-21
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82003AT0821(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The applicant requested, before an Austrian court, the declaration of enforceability of a default decision of an Italian court made in December 2001 as well as the authorisation of the enforcement. The Italian proceedings were initiated in 1992, i.e. before the Brussels Convention/Lugano Convention came into force. The facts which were required to establish the jurisdiction of the Italian court of first instance were not contained in the translation of the Italian decision in German, which was submitted in extract. In the proceedings, a question arose as to whether the subsequent submission of a complete translation, as well as proof of the enforceability and service according to Article 48 Brussels Convention/Lugano Convention, could be requested. Further, it was questioned whether merely preliminarily enforceable decisions fall under Title III Brussels Convention/Lugano Convention.
The OGH (AT) holds that the applicability of the Brussels Convention/Lugano Convention can only arise from Article 54(2). For this purpose, the jurisdiction of the Italian court of first instance must be examined. If this is not possible from the documents submitted, the necessary translations and proofs of the enforceability and service within the meaning of Article 46 and 47 Brussels Convention/Lugano Convention can be requested, according to Article 48(2). Further, the OGH holds that Title III Brussels Convention/Lugano Convention also encompasses the recognition and enforcement of preliminary decisions, as Article 31 Brussels Convention/Lugano Convention does not differentiate with regard to these.