Oberster Gerichtshof, Beschluss vom 22/10/2009 3 Ob 155/09d
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2009:RS0125468
Date: 2009-10-22
Subject matter: Lugano Convention
Origin: Austria

82009AT1022(01)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
An application was made in Austria for a declaration of enforceability of an abstract acknowledgement of a debt certified by a notary in Germany. The application included an "enforceable copy" of the document issued by a different notary. The court of first instance granted the application. The court of second instance granted the appeal of the enforcement debtor. Thereupon the enforcement creditor lodged an appeal to the Oberste Gerichtshof (AT).
The Oberste Gerichtshof partly grants the appeal. The matter falls within the scope of application of the Lugano Convention. There is no breach of (substantive) Austrian public policy in terms of Article 27(1) Lugano Convention. The debtor undertook to pay a certain money sum, which is compatible with the fundamental values of Austrian law. An abstract acknowledgement of a debt (according to § 781 first sentence of the German Civil Code) corresponds to a constitutive acknowledgement, which, while not governed by statute, is recognised in Austria in case law and academically. A condition for a declaration of enforceability is furthermore that the instrument is sufficiently specific, whereby, however, the same conditions may not be imposed on European instruments enforceable in the State of origin as on domestic instruments. In addition, a document in terms of Article 47(1) Lugano Convention, which also applies pursuant to Article 50(3) Lugano Convention to declaration of enforceability of documents, as appropriate, is not lacking. A separate document is not required. Under German law, a notary who issued the document also has authority to issue an enforceable copy, the document within the meaning of Article 47(1) Lugano Convention. A teleological reduction of Article 50(3) in conjunction with Article 47(1) Lugano Convention to mean that proof of service on the obligated party may be dispensed with does not come into consideration, wherefore the appeal must be dismissed until this error has been rectified.