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The Court of Ukraine recognized and allowed to enforcement on territory of Ukraine the decision of the Austrian court by allowing the compulsory enforcement of this decision to recover damages from the transport company of Ukraine in favor of the Austrian insurance company. The decision came into force, was appealed, partially changed by the Court of Appeal (slightly reduced the amount of the penalty). The decision was executed by the debtor voluntarily.
Case No 303/1531/18 2к / 303/4/18
JUDGMENT IN THE NAME OF UKRAINE
July 12, 2018 City of Mukachevo
MUKACHEVO CITY DISTRICT COURT OF THE TRANSCARPATIA REGION
represented by: Presiding judge Kurakh L.W.
with the participation of the secretary of the court sessions PARTICIPANTS_1
Representative of the defendant PARTICIPANTS_2
has taken into account the application of the insurance company UNIQA for the enforcement of the court decision of the District Court of Salzburg (Republic of Austria) in Ukraine in an open court hearing in the courtroom in Mukachevo and –
DEFINED:
At the district court of Mukachevo of the Transcarpathian region, an application by the insurance company UNIQA for enforcement of the court decision of the district court of Salzburg (Republic of Austria) dated May 23, 2015, of the following claims: -17,500 (seventeen thousand five hundred) euros – enforcement amount; – 3,217.00 (three thousand two hundred and seventeen) euros – procedural costs.
The claimant justifies the application for enforcement by the fact that with the above mentioned decision the claim of the claimant – the insurance company UNIQA – was upheld. The defendant – ZakarpatEuroTrans GmbH – is based in Ukraine. The defendant does not fulfill the court decision, thereby violating the plaintiff’s rights. In this context, the latter was forced to apply to the Court of Ukraine for enforcement of the decision. The defendant was duly informed about the case and the possibility of representing its interests, which is reflected in the minutes of the court session of the Mukachevo District Court on January 22, 2014 on the delivery of the summons to the defendant’s representative in case No. 13 СG 55 / 13р -21 is proven.
On April 18, 2018, ZakarpatEuroTrans GmbH objected to the application to the court, where the defendant alleged that the application for the enforcement of court decision No. 13 СG 55 / 13р-21 of May 23, 2015 in relation to the obligation of Plaintiff UNIQA Österreich Versicherungen AG refers to the payment in favor of the interpreter Mag. Kubalevska-Vyshynska – interpreting costs to the value of 20 euros, but not to the collection from ZakarpatEuroTrans GmbH of 17,500 euros and € 3,217.00 procedural costs. In addition, the aforementioned decision was not issued on May 25, 2015, but on May 27, 2014 and the defendant was not notified of the hearing.
On May 22, 2018, the plaintiff’s representative – the insurance company UNIQA – submitted a statement to the court to clarify the application. In this statement, the applicant’s representative pointed out that the main number of the case, the recognition of the decision in which the applicant is requesting, is the number No. СG 55 / 13р, which is given on the first page of the translation of the decision. Extension No. 13 СG 55 / 13р-21 was added to the decision, as the court made an additional decision on interpreting costs in the matter, which is why the plaintiff incorrectly stated the main number of the matter with the extension -21. In addition, the representative of the plaintiff has pointed out that the defendant was duly informed by the Mukachevo district court in the context of the consideration of the mandate of the Austrian court about the participation in case No. СG 55 / 13р and about the possibility of representing its interests, what is evidenced by the minutes of the court session of the Mukachevo District Court on January 22, 2014 on the delivery of the summons to the defendant’s representative in case No. 13 СG 55 / 13р. Against this background, the plaintiff files an application for enforcement of the court decision of the District Court of Salzburg (Republic of Austria) dated May 23, 2015 in case no. 13 СG 55 / 13р.
The applicant’s representative did not appear at the court hearing, but submitted a motion to the court to hear the matter in his absence, indicating that he is seeking the approval of the clarified motion as a whole.
The debtor’s representative – ZakarpatEuroTrans GmbH – Participant_2 raised objections at the court session to the enforcement of the court decision of the District Court of Salzburg (Republic of Austria) of 23.05.2015.
After hearing the debtor’s representative and examining the files and materials, the court found the following.
Recognition and enforcement of a foreign court decision in Ukraine is the extension of the legal force of such a decision to the territory of Ukraine and the application of enforcement measures according to the procedure established in the Code of Civil Procedure of Ukraine.
According to Art. 462 of the Code of Civil Procedure of Ukraine, decisions of foreign courts (the courts of foreign states, other competent bodies competent in civil matters) can be recognized and enforced in Ukraine if their recognition and enforcement by an international agreement established by the Verkhovna Rada of Ukraine has been ratified, or provided according to the principle of reciprocity. If the recognition and enforcement of a foreign judgment is based on the principle of reciprocity, it is presumed to exist unless proven otherwise.
According to Art. 464 of the Code of Civil Procedure of Ukraine, the decision to authorize the enforcement of a foreign court decision is made by the court at the place of residence of the debtor.
The headquarters of ZakarpatEuroTrans Ltd. is located in the Transcarpathian region, Mukachevo district, Kolchyno urban-type settlement, 17 Naberezhna street.
According to item 12 of the Decree of the Plenary Session of the Supreme Court of Ukraine No. 12 of December 24th, 1999 “About the consideration by courts of applications for recognition and enforcement of decisions of foreign courts in Ukraine (arbitration tribunals) …” the courts examine foreign judgments in the within their defined framework and cannot decide on the correctness of these decisions in the matter and may not make any changes to such decisions.
According to Article 81 of the Law of Ukraine “On Private International Law”, the following decisions can be recognized and enforced by foreign courts in Ukraine: decisions in civil, labor, family and commercial matters, foreign court decisions in criminal matters only in relation to damages, decisions made by foreign arbitration tribunals and other organs of foreign states that are competent in civil and commercial matters.
The court found that the Salzburg Regional Court (Republic of Austria) ordered a collection of 17,500 euros and 3,217 euros in procedural costs from ZakarpatEuroTrans GmbH in favor of UNIQA Österreich Versicherungen AG in case no. 13 СG 55 / 13р. This decision became final on May 23, 2015.
According to Art. 263 Part 4 of the Code of Civil Procedure of Ukraine, when choosing and applying the legal system to the disputed legal relationships, the court must take into account the conclusions on the application of the relevant legal norms set out in the ordinances of the Supreme Court of Ukraine.
When deciding on this case, the court will take into account the Order of the Supreme Court of Ukraine dated April 23, 2014, which approved the judgment in case No. 6-39цс14, the subject of which is the dispute over authorization to enforce the decision of the International Arbitration Court of the Austrian Chamber of Commerce on the collection of claims.
The assertion of the debtor’s representative that the debtor was not notified of the hearing in Salzburg (Republic of Austria) should be disregarded, as this assertion is refuted with the materials of file 1.7 / 2014, which contains the minutes of the court session of the Mukachevo District Court of January 22, 2014 No. 303/261/13-ц, according to which copies of the documents of the Austrian court in case No. 13 СG 55 / 13р to the representative of ZakarpatEuroTrans GmbH against signature were handed over. This confirmation of receipt, signed by the representative of ZakarpatEuroTrans GmbH PARTICIPANTS_1, is in the file.
The court did not find any reasons for rejecting the application for enforcement of the above foreign decision provided for in article 468 of the Code of Civil Procedure of Ukraine.
Article 467 part 8 of the Code of Civil Procedure of Ukraine states that if in the decision of a foreign court the award amount is indicated in a foreign currency, the court deciding on this application will convert the amount in the national currency at the exchange rate of the National Bank of Ukraine on day on which the judgment was issued.
As of July 11, 2018, EUR 17,500 and EUR 3,217.00 converted into hryvnia at the official exchange rate of the National Bank of Ukraine correspond to an equivalent of 636,011.90 hryvnia.
In view of the above, the court has decided to grant the application of the insurance company UNIQA, in particular – the authorization to enforce the decision of the District Court of Salzburg (Republic of Austria) in case no.13 СG 55 / 13р, which became final on May 23, 2015, in Ukraine.
In view of the above, the court has decided to grant the application of the insurance company UNIQA, in particular the authorization to enforce the decision of the District Court of Salzburg (Republic of Austria) in case no.13 СG 55 / 13р, which became final on May 23, 2015, to issue in Ukraine.
