OGH; 2019-02-20; 3 Ob 251/18k
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2019:0030OB00251.18K.0220.000
Date: 2019-02-20
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82019AT0220(51)_ENG_SUMJURE
JURE summary
JURE summary
The case concerns a dispute between a corporation established in Italy (hereinafter 'the plaintiff') and a corporation established in Slovenia (hereinafter 'the defendant'), which has been ordered by the Tribunale Civile e Penale di Vicenza to pay EUR 53_101.61 to the plaintiff within 50 days of delivery. The court order for payment was duly served and therefore it is enforceable in the Member State of origin. The defendant (without legal representation) objected the court order for payment and requested an extension of a period (which cannot be extended).
The plaintiff also brought action in the Austrian Bezriksgericht Mödling (hereinafter ‘the Court of First Instance’). At the plaintiff’s request, the Court of First Instance declared the execution title enforceable in Austria and granted execution of the plaintiff’s claim against the obliged defendant.
The defendant lodged an appeal against this in the Austrian Landesgericht Wiener Neustadt (hereinafter ‘the Court of Appeal’), invoking the rejection of the Supreme Court of the Republic of Slovenia to grant enforceability of the same execution title on the basis of  violation of the public order, as well as the violation of the right to be heard, and the fundamental right to a fair trial, as the defendant’s appeal against the order for payment had not been evaluated by the Italian court. The Court of Appeal amended the decision of the Court of First Instance, regarding the declaration of enforceability and regarding the granting of the execution title, to dismiss the case. Although the Court of Appeal was not bound by the Slovenian refusal to grant enforceability, it found that the defendant was not given opportunity for effective participation in the title proceedings.
Then the plaintiff lodged an appeal on points of law against the dismissal of the application for declaration of enforceability in the Oberster Gerichtshof in Vienna (hereinafter ‘the Supreme Court’). According to Article 66 of the Brussels I Regulation – recast (1), the Supreme Court applied the Brussels I Regulation (2) to the present enforcement procedure, as the title procedure was initiated before 10 January 2015. In summary, the Supreme Court was unable to find an intolerable curtailment of the defendant's procedural rights (in particular the right to be heard), or, by the declaration of enforceability of the order for payment, an intolerable result in Austria (refusal of the declaration of enforceability on the grounds of a breach of public order in accordance with Article 34 of the Brussels I Regulation).
Therefore, the Supreme Court amended the decision of the Court of Appeal on the declaration of enforceability and restored the decision of the Court of First Instance regarding the declaration of enforceability of the execution title in Austria.
(1) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.(2) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.