Oberster Gerichtshof; 2020-09-23; 3 Ob 126/20f
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2020:0030OB00126.20F.0923.000
Date: 2020-09-23
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82020AT0923(51)_ENG_SUMJURE
JURE summary
JURE summary
A bank domiciled outside of Austria (hereinafter ‘the plaintiff’) applied for the resolution of the High Court of Justice Business and Property Courts of England & Wales Commercial Court (hereinafter ‘the English decision’) to be enforced against a private person domiciled in Austria (hereinafter ‘the defendant’).
The English decision was based on two Jordanian decisions ordering the defendant to pay a total of approximately 10,300,000 USD. Within the proceedings in England, an application of the plaintiff by which the plaintiff sought that both Jordanian decisions, as well as the English decision, should be declared enforceable against the defendant was upheld.
The defendant did not challenge the payment obligation stipulated by the Jordanian decisions. However, the defendant claimed that the amount was not to be paid to the plaintiff due to a lack of entitlement.
The Bezirksgericht Freistadt (hereinafter ‘the Court of First Instance’) approved the enforcement regarding the claim of the plaintiff.
Subsequently, the defendant lodged an appeal with the Landesgericht Linz (hereinafter ‘the Court of Appeal’) requesting the rejection and suspension of the enforcement, citing a breach of public policy. In addition, the defendant stated that the English decision had been based on two Jordanian decisions, which it intended to enforce, and was therefore to be classified as a so-called merger decision.
The Court of Appeal did not uphold the appeal of the defendant on the grounds that the proceedings in England were conducted in a contradictory manner, a fact which excluded the applicability of an exequatur procedure. Regarding the English decision, Article 2(a) of the Brussels I Regulation (recast) (1) was applicable.
The Oberstes Gerichtshof (hereinafter ‘the Supreme Court’), as the court seised by the defendant, submitted a request to the Court of Justice of the European Union seeking the issuance of a preliminary ruling regarding the following matters:
1. Are […] [Article 2(a) and Article 39 of the Brussels I Regulation (recast) to be interpreted to that extent that a decision against the debtor can be declared enforceable if the debtor was obliged to provide performance […] as a result of a summary examination within contradictory proceedings in a Member State where such result was solely based on the effectiveness of a decision made by a third country court ordering the debtor to provide payment to the party which prevailed […] within the third country proceedings?
2. Should question 1 be negated: Are […][Article 1, Article 2(a), Article 39, Article 45, Article 46 and Article 52 of the Brussels I Regulation (recast)] to be interpreted to that extent that the enforcement is to be refused regardless of the existence of ground under […] [Article 45  of the Brussels I Regulation (recast)] if the decision subject to the examination does not represent a decision according to[…] [Article 2(a) or Article 39 of the Brussels I Regulation (recast)] or if the underlying application in the Member State of origin does not fall within the scope of the […] [Article 45 of the Brussels I Regulation (recast)]?
3. Should question 1 be negated and question 2 affirmed: Are […] [Article 1, Article 2(a), Article 39, Article 42(1)(b), Article 46 and Article 53 of the Brussels I Regulation (recast)] to be interpreted to that extent that within proceedings regarding an application to refuse the enforcement, the court of the requested Member State is obliged to assume solely with regard to information of the court of origin contained in the certificate under […] [Article 53 of the Brussels I Regulation (recast)] that the respective decision falls within the scope of the Regulation and is enforceable?
The Supreme Court stayed the proceedings until the Court of Justice of the European Union has made a decision.
(1) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.