Oberster Gerichtshof, Beschluß vom 30/06/2005 3 Ob 152/05g
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2005:RS0120069
Date: 2005-06-30
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82005AT0630(01)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff obtained a default judgment before a Netherlands court against the defendant for payment of a certain amount of money. The summons to attend the hearing was served on the defendant with the following instruction on right to appeal: “If the respondent party (…) fails to attend the court hearing (…) despite having been summoned to attend the court hearing (…) the court will deliver a default judgment (…)." The Court of First Instance declares the default judgment enforceable in Austria. The defendant was served with a copy of the decision of the Court of First Instance, not however a copy of the default judgment.
The OGH (AT) referred the following questions to the ECJ for interpretation: Is the phrase „, ... unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so" in Article
34 (2) Brussels I Regulation to be interpreted as meaning that this „possibility“ at any rate necessitates a proper service on the defendant, in accordance with the law of service, of a copy of the default judgment allowing the claim passed in a Member State? In the case of the negation of the first question: Should the service of a copy of the judgment on the application to declare the precisely indicated Netherlands default judgment enforceable in Austria and to authorise the execution as a result of the foreign execution title declared enforceable, cause the respondent and the obligated party (i.e. the defendant in the title proceedings), on the one hand to fathom the existence of this judgment, and on the other hand to also fathom the existence of a possible attainable appeal against this judgment in accordance with the legal system of the State of origin, in order to inform itself in this way of the possibility to file an appeal as a primary requirement of the applicability of the exemption of the barrier to recognition according to Article 34(2) Brussels I Regulation?