Oberster Gerichtshof; 2015-01-21; M. W.; B. P.; 3 Ob 232/14k
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2015:0030OB00232.14K.0121.000
Date: 2015-01-21
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82015AT0121(51)_ENG_SUMJURE
JURE summary
JURE summary
The applicant (the “applicant”) requested the execution of an enforceable claim against the respondent (the “respondent”). The execution title was given as result of a judgment by default of the Amtsgericht Starnberg (Germany) in 2008 (“judgment by default”).
The Court of First Instance (Bezirksgericht Imst, Austria) dismissed the request to declare enforceability of the judgment by default. The respondent had been served with the request filed in the Amtsgericht Starnberg only by official announcement.
The Court of Appeal (Landesgericht Innsbruck) declared the judgment by default to be enforceable in Austria. According to the German Zivilprozessordnung, the service of process may occur by official announcement if a person’s whereabouts are unknown.
The respondent sought restoring of the dismissal of the declaration of enforceability of the judgement by default by the Court of First Instance in the appeal on points of law.
According to the Oberster Gerichtshof (“OGH”), the appeal on points of law is permissible and entitled.
The declaration of enforceability of a foreign execution title is governed by the provisions of the Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (“Brussels I Regulation”).
It must be examined whether the respondent has received a valid service of proceedings preceding the judgment by default. According to Article 34(2) of the Brussels I Regulation, a decision is not accepted if the defendant who has not entered an appearance has not been served with the instituting document in a way that he could defend himself.
Basically, a fictitious service is permissible as long as the defendant remains able to defend himself in time.
In the present case, the service of proceedings occurred through official announcement on the court panel. In 2013, the respondent had learned about the motion and the judgment by default based on it for the first time when the original approval of the execution was served to him.
Fictitious service did not occur and has not started the time limit to lodge a defence.
The OGH followed the respondent’s appeal on points of law. The decision of Court of Appeal is amended so that the decision of the Court of First Instance will be restored.