Oberster Gerichtshof, Beschluß vom 30/11/2006 3 Ob 212/06g
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2006:RS0121711
Date: 2006-11-30
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82006AT1130(03)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff, having its seat in Germany, obtained a judgment in Germany against the Austrian defendant. The judgment was declared enforceable by the Bezirksgericht of Grieskirchen (AT). Later, the German appellate court altered the original judgment. Upon the defendant's application, the Austrian court repealed the declaration of enforceability and stayed the enforcement proceedings. It held that enforcement could not be performed on the basis of a title which no longer existed in the original State. The Austrian appellate court allowed the plaintiff's appeal in part. It stated that as long as a part of the foreign final judgment was preserved, that part continued to be enforceable. The obligated party appealed seeking the re-establishment of the order by the court of first instance.
The OGH (AT) allows the appeal, however only on the ground that the defendant deposited the required security. The court firstly holds that the comparison of judgments for the purpose of determining the modifications made does not constitute a review as to the substance according to Article 45(2) Brussels I Regulation, which is prohibited. Furthermore, the OGH states that a foreign judgment in the scope of the Brussels I Regulation has the same effects as in the State in which the judgment was pronounced. Thus, the admissibility of enforcement measures has to be determined according to German procedural rules. The version of the last appellate judgment is relevant for the determination of enforceability. Due to the delivery of the modified German appellate judgment, the preliminary enforceability ceases to be effective with regard to the modifications made. Where enforcement has become inadmissible in the original State the domestic declaration of enforceability cannot be upheld. However, in the present case neither the content of the obligation to perform was altered nor the preliminary enforceability.