Oberster Gerichtshof, Urteil vom 27/11/2007 3 Ob 157/07w
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2007:0030OB00157.07W.1127.000
Date: 2007-11-27
Subject matter: Lugano Convention
Origin: Austria

82007AT1127(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The minor applicant is domiciled in Poland. He obtained a judgment by the court of first instance of Konin (PL) against the respondent, domiciled in Austria, by which the latter was ordered to pay maintenance to the applicant. The whereabouts of the respondent were unknown in the Polish proceedings. According to Polish law of civil procedure, a representative was appointed for the respondent upon the applicant's application. The respondent appealed against the Austrian declaration of enforceability. He asserted that the claim for maintenance had not been served upon him and thus the Polish judgment could not be declared enforceable according to Article 27(2) Lugano Convention. The appellate court ordered the applicant to present a document certifying service of the claim for maintenance. The applicant failed to comply with the order. He merely presented a confirmation of the service of the Polish judgment. As thereupon the declaration of enforceability was definitively refused, he appealed to the OGH (AT).
The OGH (AT) dismisses the appeal. It holds that the Lugano Convention is applicable to the case according to its Article 54(2). The proceedings were instituted before the entry into force of the Convention. The jurisdiction of the original court is undisputed. The recognition of the Polish judgment cannot be refused according to Article 27(2) Lugano Convention. If service of the claim for maintenance was duly effected on the representative according to Polish law of civil procedure, Article 27(2) Lugano Convention does not apply. However, despite the appellate court's demand, the applicant failed to offer evidence for due service of the claim for maintenance upon the representative. Thus, the existence of such service is not certain. As the documents required by Article 46(2) Lugano Convention were not presented, the judgment cannot be declared enforceable.