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30 October 2012
The Supreme Court recently dealt with the requirements for the suspension of enforcement proceedings under Austrian and European law.(1)
According to Section 44 of the Enforcement Act, enforcement can be postponed only if its beginning or continuation is related to the risk of an irreplaceable property loss, or one that would be difficult for the applicant to replace. A loss is considered irreplaceable or difficult to replace where the applicant - due to reasons of law or facts - cannot count on compensation for the damage. This particularly applies if the debtor lacks financial means. If such reasons are not obvious, the applicant must state concrete facts and provide evidence of the risk of such property loss.
Whether property loss is intentional depends on the object and means of enforcement. Concerning attachments of a debt, the risk of property loss is typically not obvious; thus, it must be identified and evidenced. In any event, it is insufficient to make general and uninformative allegations. It must first be ascertained that the obliged party seeks only to suspend the enforcement (against a security deposit), rather than to object to the enforcement entirely.
The recognition and enforcement of foreign judgments within the European Union has been simplified by the introduction of the European Enforcement Order for Uncontested Claims Regulation (805/2004). The regulation abolishes the exequatur for judgments on uncontested claims that have been certified as a European enforcement order in the member state of origin. Such a certified judgment will be recognised and enforced in other member states without exequatur proceedings being necessary.
According to Austrian prevailing doctrine, under Article 20 of the regulation, the applicant must also state concrete facts and provide evidence of the risk of property loss (unless the risk is obvious according to the documents before the court). The suspension of enforcement under the regulation corresponds to that under Austrian enforcement law; the intentions of the regulation and the Enforcement Act are the same.
The discretion under Article 23 of the regulation is dependent on the chances of success of an appeal lodged in the original member state, as well as the likelihood of irreplaceable property loss by carrying out the enforcement. On the other hand, Section 44 of the act provides that no suspension of enforcement will be granted if the enforcement can be initiated or continued without the risk of irreplaceable property loss for the debtor. The duty to identify and evidence the risk of property loss is in line with the EU regulation, as its purpose is the acceleration and facilitation of enforcement proceedings.
For further information on this topic please contact Klaus Oblin at Oblin & Melichar by telephone (+43 1 505 37 05), fax (+43 1 505 37 05 10) or email (firstname.lastname@example.org). The Oblin & Melichar website can be accessed at www.oblin.at.
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