Oberster Gerichtshof, Urteil vom 19/10/2006 3 Ob 157/06v
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2006:RS0121363
Date: 2006-10-19
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82006AT1019(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The Italian defendant company obtained a "decreto ingiuntivo" (order for payment) by the Italian Tribunale of Mantova (IT) against the Austrian plaintiff regarding an extensive claim. The order was declared provisionally enforceable. Thereupon, insolvency proceedings over the plaintiff's assets were initiated. The liquidator contested the claim lodged by the defendant, whereupon the bankruptcy court ordered the defendant to pursue the claim by entering an action. The insolvency proceedings ended with a compulsory settlement affirmed by the court. Despite the defendant's reminder, which set a deadline, the insolvency quota share corresponding to the claim was not paid. On the basis of a provision in Austrian insolvency law, according to which a claim waived due to a compulsory settlement is revived if the insolvency quota share is not paid despite a reminder, the defendant obtained an Austrian declaration of enforceability of the decreto ingiuntivo regarding the part of the claim exceeding the quota share. The plaintiff instituted proceedings against the enforcement seeking a declaration that the right to that part of the claim had lapsed due to the compulsory settlement. It asserted that the defendant had failed to comply with the order to bring an action in order to have the claim, which was contested in the insolvency proceedings, accepted.
The OGH (AT) dismisses the plaintiff's appeal against the judgments by the lower courts, which had concordantly dismissed his proceedings against the enforcement of the title. Where a title for the claim is already on hand, it is the liquidator who has to conduct the judicial clarification if he contested the claim, not the creditor disposing of the title. As the Italian decreto ingiuntivo has to be recognised according to the Brussels I Regulation, it corresponds insofar to a national title. This applies independently of whether the creditor already obtained the national declaration of enforceability or not.