Oberster Gerichtshof, Urteil vom 23/10/2002 3 Ob 251/02m
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2002:RS0116954
Date: 2002-10-23
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82002AT1023(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
An Austrian court of first instance issued a declaration of enforceability in Austria of a German provisional judgment delivered on the basis of documentary evidence ordering the respondent to pay. The Austrian court of second instance confirmed this, as the respondent may assert the set-off with a counterclaim that was not capable of documentary proof in the subsequent proceedings. Therefore there was no breach of Austrian public policy. In proceedings based on documentary evidence according to the German code of civil procedure there are restrictions on admissible evidence. Only documents constitute permissible evidence. The defendant can also only file objections by way of documentary evidence. In the absence of such evidence, the examination of objections occurs in the subsequent proceedings. All of the defendant’s objections will be heard in the subsequent proceedings. Thus, a counter claim of the defendant, which is not proven by documentary evidence, may be considered.
The Oberste Gerichtshof (AT) holds firstly that a breach of public policy according to Article 27(1) Brussels Convention shall only be accepted if the foreign judgment is completely irreconcilable with the national legal system. The respondent was not however unduly disadvantaged in the German proceedings based on documentary evidence, as he could bring objections in the subsequent proceedings, which had not been raised until now, such as set-off in the present case. The provisional judgment may then be overturned. This does not contradict the fundamental principles of Austrian procedural law.