Oberster Gerichtshof, Urteil vom 03/09/2008 3 Ob 146/08d
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2008:RS0124084
Date: 2008-09-03
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82008AT0903(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
In 1994, the German applicant was granted a writ of execution against the respondent in Germany by the Amtsgericht of Munich (DE) in a judicial default notice procedure. Enforcement against the respondent in Germany went without success. When she later moved to Austria, the respondent applied to the Bezirksgericht of Leibnitz (AT) in 2007 for an Austrian declaration of enforceability of the German writ of execution. During the proceedings, the applicant stated that it was impossible for it to produce the documents proving force of res judicata and enforceability as well as service of the document instituting the proceedings. It produced a confirmation of the Landgericht of Munich (DE) that the files regarding the judicial default notice procedure had already been destroyed. The Austrian declaration of enforceability granted by the Bezirksgericht of Leibnitz was set aside by the Landesgericht of Graz (AT) upon a complaint of the respondent. The applicant appealed to the OGH (AT).
The OGH dismisses the appeal. It holds that a declaration of enforceability of the writ of execution, which was from 1994, may neither be granted according to the Brussels Convention nor according to the Lugano Convention 1988 and also not according to the Brussels I Regulation, all of which only later entered into force between Germany and Austria. The only option for a declaration of enforceability is the German-Austrian Recognition and Enforcement Convention, whose requirements are not, however, fulfilled, since the applicant is not able to produce all the required documents. The requirements regarding the documents to be produced are indeed since lower, in particular in the Brussels I Regulation. However, recourse may not be had to its rules by way of a corresponding application. This must be ruled out in light of the clear rules of the transitional provisions.