Oberster Gerichtshof, Beschluß vom 12/07/2000 3 Ob 78/00t
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2000:RS0114023
Date: 2000-07-12
Subject matter: Lugano Convention
Origin: Austria

82000AT0712(01)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff seated in Germany claims that a default judgment given by a German court be declared enforceable in Austria. He provides a confirmation of the judge of the German court, according to which the claim was served at a certain date on the defendant in the German proceedings with a postal delivery document. The court of first instance (AT) dismissed the claim for an order of enforcement, since it could not examine the regularity of the service procedure in the present case according to Article 46(1) Lugano Convention without being informed in detail on this procedure; this was confirmed by the court of appeal.
The OGH (AT) considers on the one hand that the court shall examine ex officio whether the document instituting the proceedings was duly served and within the time limits according to Article 27(2) Lugano Convention. For this purpose pursuant to Article 46(2) Lugano Convention, a document on the service procedure or a confirmation from which the type of service emanates, is generally necessary. According to Article 48(1) Lugano Convention, the court can however accept equivalent documents in order to avoid excessive formality. Even if it does not result from the presentation of the confirmation of the German judge, to whom and under which form the document instituting the proceedings was effectively served, this confirmation shall be considered as an equivalent. It results from this confirmation that the service was effected properly on a certain day. The indications on the facts contained in the affidavit of service do not offer better possibilities for re-examination. Thus the judgement shall be declared enforceable in Austria.