OGH: Service by Notice Board only after Other Attempts

May 24, 2024 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has clarified the requirements for service of an action by publication in the Ediktsdatei* notice board under Section 92 of the Austrian Code of Civil Procedure (Zivilprozessordnung, hereinafter ZPO).  

The defendant is a company with headquarters in Hungary as well as a branch office in Austria. The court of first instance issued an order for payment. Service of the order failed twice at the branch’s address because the defendant, according to postal reports, had moved. A forwarding order was issued to the business’s Hungarian address, as the managing director was in Hungary at the time. Subsequently, the order for payment was entered in the electronic notice board of the Austrian Ministry of Justice, whereby the order was deemed to have been served after 14 days in accordance with Section 92 in conjunction with Section 115 of the ZPO.

Following the commencement of the enforcement proceedings, the defendant filed a motion to set aside the enforceability of the payment order.

Under Section 92 of the ZPO, service by publication in the Ediktsdatei is permissible if service could not be effected at the business address entered in the commercial register, the plaintiff does not provide another address for service, and the court does not know of any other address for service without making enquiries.

Following the commencement of the enforcement proceedings, the defendant filed a motion to set aside the enforceability of the payment order.

The court of first instance granted the application on the basis that Section 92 of the ZPO had been misapplied, as no attempt had been made to serve the documents at the Hungarian business address. The court of appeal, however, dismissed the application. With reference to the legal commentaries, the term ‘another place of service’ can only be understood as another domestic address.

The OGH had to decide whether service should be made to a business address (i.e., delivery point) in another EU country which appears in the company register and can therefore be identified by the national court without further investigation.

This is correct: Both the business address of the legal entity entered in the commercial register and that of the branch office, at which service must always be attempted before ‘another place of service’ is considered, are ‘places of service’ within the meaning of Section 92(1) of the ZPO. The procedure under Section 92 of the ZPO therefore requires that service could not be effected at either the (domestic) address of the branch or the (foreign) address of the legal entity listed in the commercial register.

OGH 1 Ob 15/24y (8 April 2024)

* The Austrian Ediktsdatei is the official legal notices database of the Austrian Ministry of Justice that also serves as electronic notice board, for example, in insolvency procedures. See edikte.justiz.gv.at/edikte/edikthome.nsf