Oberster Gerichtshof, Urteil vom 22/03/2011 3 Ob 38/11a N***** O***** / W***** GmbH
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2011:0030OB00038.11A.0322.000
Date: 2011-03-22
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82011AT0322(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The applicant was employed by the respondent. It terminated the employment relationship. Upon an action of the applicant, the Cour d'appel of Douai (FR) upon appeal ordered the respondent to pay a considerable sum to the applicant due to unlawful termination of the employment relationship. The applicant obtained a declaration of enforceability of the judgment in Austria.
The respondent lodged an appeal against the issuance of the declaration of enforceability to the Landesgericht of Feldkirch (AT). It claimed that the court of origin considered the termination as invalid because the termination requirements of French employment law, according to which an employer must first hold preliminary talks with the employee and then must issue the termination in writing by registered post, had not been adhered to. This, along with the large amount awarded to the applicant, was contrary to Austrian public policy. Therefore, the judgment could not be recognised pursuant to Article 34(1) Brussels I Regulation. After the appeal was dismissed, the respondent lodged an appeal to the OGH (AT).
The OGH dismisses the appeal. In order for there to be a breach of public policy, a foreign judgment must be fundamentally incompatible with the Austrian legal system, which only ever occurs in exceptional cases. For this to be the case, the fundamental values of the Austrian legal system must be violated. Not only must the application of the foreign law be entirely incompatible with the domestic legal system, but also the concrete result of its application must be considered as offensive domestically. A breach of European public policy only comes into consideration where a fundamental norm of the EU has been disregarded. This is by no means the case with regard to the judgment which was declared enforceable with the result that the appeal cannot be granted.