Oberster Gerichtshof, Beschluß vom 31/01/2007 3 Ob 272/06f
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2007:0030OB00272.06F.0131.000
Date: 2007-01-31
Subject matter: Lugano Convention
Origin: Austria

82007AT0131(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The applicant is a child living in Poland. The Polish court issued a judgment regarding maintenance in the child's favour against its mother domiciled in Austria. The child applied for a declaration of enforceability in Austria. In the proceedings for the issuance of an enforcement order it was disputed whether the recognition of the Polish judgment, which had to be determined according to the Lugano Convention, was barred by the ground for non-recognition within Article 27(2) Lugano Convention. The claim for maintenance could not be served on the respondent, as her name was wrongly stated in the claim as A.K. instead of A.O. This fact had remained unnoticed in the original proceedings. After the problem of service had arisen, the Polish court appointed a bailiff for the respondent and had served the latter with notice. This procedure is possible according to Polish law of civil procedure in cases where, according to the findings of the court, the whereabouts of a party are unknown. The lower courts dismissed the application for the issuance of an Austrian enforcement order. The applicant appealed to the OGH (AT).
The OGH (AT) dismisses the appeal. It holds that the law of the original State, in this case Polish procedural law, is relevant in order to determine ex oficio whether service was duly effected. Principally, service on a bailiff appointed by the court can be considered due. For this purpose, the whereabouts of the defendant party have to be unknown. In this case however, the respondent's whereabouts were not unknown. Due service rather failed due to the fact that the defendant's name was incorrectly stated in the claim for maintenance. Consequently, the prerequisites for the appointment of a bailiff were not on hand. As the respondent was unable to defend herself, the judgment cannot be recognised, according to Article 27(2) Lugano Convention.