OGH; 2016-02-23; 6 Ob 205/15p
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2016:0060OB00205.15P.0223.000
Date: 2016-02-23
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82016AT0223(51)_ENG_SUMJURE
JURE summary
JURE summary
The plaintiff, a Czech limited company, brought action for damages against the defendant, an Austrian limited company and their former legal representation, because of flawed conduct of proceedings. The defendant did not prevent the enforceability of a Czech judgment by default in Austria. The Court of first instance dismissed the action because of the statute of limitations. The Court of Appeal upheld the plaintiff’s appeal. The defendant’s revision is directed against this.
The Court of Appeal relies on the provision of Article 34(2) of Council Regulation (EC) No 44/2001 of 22.12.2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (“Brussels I Regulation”). Please note that it is Regulation that was valid until 09.01.2015 only.
According to this provision, a decision is not recognised if the defendant (in this case the plaintiff in dispute with the judgement by default as a result), by not engaging in the procedure, has not been served the document instituting the proceedings or an equivalent document in sufficient time and in such a way, they could defend themselves.
The Court of Appeal assigned to the first instance the supplement of proceedings as the proceedings on declaration of enforceability had allegedly gone if the defendant had reported particulars on the deprivation of the rights of the defence according to Article 34(2) of the Brussels I Regulation. The plaintiff claims the defendant would have had to explain the reasoning of the refusal according to Article 34(2) of the Brussels I Regulation in more detail, as the subsidiary in Prague had ceased existence not upon formal cancellation in 2006, but already as of 2002, when it ceased to exist at the address registered in the commercial register and therefore, was not able to take note of the summons to the hearing and the judgment by default or to defend themselves.
According to the Supreme Court of Justice - Oberster Gerichtshof (hereinafter “OGH”), in this case, this is not a violation of Article 34(2) of the Brussels I Regulation and the enforceability of the Czech judgment would have been unable to prevent.
Article 34(2) of the Brussels I Regulation assumes that the proceeding’s instituting documents have not been delivered to the defendant in such a way that they were able to defend themselves. According to the OGH, there are enough judgements on this. Even if requirements of delivery have been infringed, it is to be checked whether the delivery error has affected the debtor’s rights of defence from a substantive point of view. The plaintiff did not comply with its duty to inform the commercial register of an address change. Thus, the fictitious delivery is justified.
The OGH decided that the contested judgment is to be changed, granting the revision and that the first-instance’s decision is to be restored to the correct judgement to dismiss the action.