Oberster Gerichtshof, Urteil vom 17/12/2003 3 Ob 93/03b
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2003:RS0118555
Date: 2003-12-17
Subject matter: Lugano Convention
Origin: Austria

82003AT1217(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The applicant had obtained a payment order in Germany against the respondent. The order was declared enforceable in Austria. The respondent appealed according to Article 36(1) Lugano Convention, asserting that he had made partial payments after the enforcement order had been given, which is why the declaration of enforceability should have only been granted with regard to the remainder. The appellate court held that the subsequent payment did not constitute an admissible ground for an appeal according to Article 36(1) Lugano Convention.
The OGH (AT) holds that the Lugano/Brussels Convention does not regulate the problem of objections against the awarded claim which arise subsequently. Furthermore, it cannot be inferred from the ECJ's judgment of 4 February 1988 – C 145/86 – in Hoffmann/Krieg that the defendant is obliged to plead all objections which go beyond the grounds for non-recognition within Articles 27 and 28 Lugano/Brussels Convention in the scope of an appeal according to Article 36(1) Lugano/Brussels Convention. The proceedings provided by Article 36(1) Lugano/Brussels Convention constitute summary proceedings which do not provide for a hearing. The determination of matters of fact related to a hearing would undermine the practical efficiency of the Lugano/Brussels Convention and thus, would lead to a delay of the proceedings for a declaration of enforceability, which would be unacceptable for the applicant. Hence, a subsequent payment cannot be pleaded in the scope of Article 36(1) Lugano/Brussels Convention.