OGH; 2019-09-05; 17 Ob 12/19t
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2019:0170OB00012.19T.0905.000
Date: 2019-09-05
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82019AT0905(51)_ENG_SUMJURE
JURE summary
JURE summary
An Austrian lawyer (hereinafter 'the plaintiff'), in his capacity as insolvency administrator of a limited liability company with its registered office in Austria, brought an action challenging certain legal acts and legal transactions (participation agreement, resolution with regard to the increase of capital, articles of association) of a company with its registered office in Slovenia (hereinafter 'the defendant') and requested the payment of a sum of money.
The Landesgericht Eisenstadt (hereinafter 'the Court of First Instance') delivered a favourable judgment by default, and subsequently declared a European enforcement order at the request of the plaintiff.
The defendant requested for the withdrawal of the declaration in accordance with Article 10(1)(b) of Regulation (EC) No 805/2004 (1). Bankruptcy, winding-up and similar proceedings are excluded from the scope of Regulation (EC) No 805/2004.
The Court of First Instance dismissed the defendant's application based on Article 25 of Regulation (EC) No 1346/2000 (2). The reference in the opening clause of that article regarding the enforcement of a judgment given in insolvency proceedings under the Brussels Convention (3) is to be interpreted dynamically and also applies to Regulation (EC) No 805/2004.
The Oberlandesgericht Wien (hereinafter ‘the Court of Appeal’) upheld the defendant's appeal and withdrew the declaration of the Court of First Instance. According to Article 2(2)(b), Regulation (EC) No 805/2004 is not applicable to actions for annulment. This is not regulatory gap.
The plaintiff's appeal to the Obersten Gerichtshof (hereinafter 'the Supreme Court') is admissible because the question as to whether the reference in Article 25 of Regulation (EC) No 1346/2000 also applying to Regulation (EC) No 805/2004 has not yet been solidified in the jurisprudence of the Supreme Court. However, the appeal is not justified.
According to a literal interpretation, the opening clause exclusively refers to the Brussels Convention, or the Brussels I Regulation (4), but not to Regulation (EC) No 805/2004.
Due to the clear exception in Article 2(2)(b) of Regulation (EC) No. 805/2004 and the opening clause of Article 25 of Regulation (EC) No. 1346/2000 which only applies to Regulation (EC) No. 805/2004, there is no basis for the application of Regulation (EC) No. 805/2004 to a (default) judgment made during an appeals procedure.
The Supreme Court did not grant the plaintiff's appeal.
(1) Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims.
(2) Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings.
(3) 1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters.
(4) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.