Oberster Gerichtshof, Urteil vom 29/01/2002 1 Ob 10/02f
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2002:RS0116115
Date: 2002-01-29
Subject matter: Lugano Convention
Origin: Austria

82002AT0129(06)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff, domiciled in Austria, brought a maintenance claim against his father, domiciled in France, before the competent Austrian court for his domicile. The court sent a copy of the statement of claim to the father, translated into French, by registered letter with advice of delivery. The advice of delivery was signed, however, by another person and not the father. The court served all further notices on the father by way of public notice. The court subsequently issued a default judgment against the father, who was not represented in the proceedings. This judgment became final. Later, the plaintiff instituted proceedings for the annulment of the judgment. He claimed that the judgment was not capable of recognition in France due to the improper service of documents instituting proceedings pursuant to Article 27(2) and, as a result, the judgment was not enforceable. He claimed he was dependent on the annulment of the judgment so that he could then obtain a judgment from properly conducted proceedings which could be enforced in France. The request of annulment was rejected in the first and second instance. The plaintiff then lodged an appeal to the OGH (AT).
The OGH grants the appeal and overturns the decision of the court of prior instance. The court examines whether a plaintiff who has obtained a judgment in his/her favour in flawed proceedings may apply for the annulment of this judgment. The OGH answers this question, debated in Austrian jurisprudence and literature, in the affirmative. The court refers to the fact that the default judgment obtained by the plaintiff against the defendant is worthless to the plaintiff due to the grounds which exist for refusal to enforce it in France. Not only the defendant but also the plaintiff must be awarded the opportunity to annul the judgment in order to allow for a maintenance judgment to be given which is capable of recognition and enforcement.