Oberster Gerichtshof, Urteil vom 18/07/2002 3 Ob 31/02h
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2002:RS0116743
Date: 2002-07-18
Subject matter: Lugano Convention
Origin: Austria

82002AT0718(02)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The parties are carriers who were subcontracted by a French carrier to transport two items from France to Austria for a French client. The Belgian applicant was subcontracted by the French carrier. He, in turn, engaged the respondent, who had its seat in Austria. The delivery was delayed and the receiver refused to accept delivery of the items. The French client subsequently sued the French carrier for damages before the competent court at the place of the transfer of the goods. The French carrier then brought an action under warranty against the applicant, who, in turn, also brought an action under warranty against the respondent. The applicant obtained in Austria a declaration of enforceability of the judgment of the Cour d'appel of Versailles (FR), in which the respondent was ordered to pay various sums to the applicant. The respondent lodged an appeal to the OGH (AT).
The OGH upholds the decision regarding the declaration of enforceability. The Lugano Convention applies to the declaration of enforceability. The French legal proceedings were instituted before the entry into force of the Lugano Convention between France and Austria. Since, however, the French court determined its jurisdiction according to the provisions of the CMR, Article 54(2) Lugano Convention is applicable. The examination of the competence of the court of origin, permissible by way of exception in Article 54(2), confirms that this court was competent for the action of the applicant, pursuant to Article 31(1)(b) CMR, as the court at the place of the transfer of the goods. The recognition of the judgment cannot be refused on the basis that the legal concept of actions under warranty is unknown in Austrian law. The judgment is still to be enforced under the Lugano Convention. In particular, recognition is not in breach of Austrian public policy in terms of Article 27(1) Lugano Convention.