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The court of appeal has left the recognition decision of the court of the first instance unchanged. As a result, the Court of Appeal of Ukraine recognized the decision of the Austrian court and allowed it to the enforcement on the territory of Ukraine by allowing to claim damages against the transport company of Ukraine in favor of the Austrian insurance company. The decision came into force. The decision was fulfilled voluntarily by the debtor.
Case No 303/1531/18
DECISION
On behalf of Ukraine
Uzhhorod city, January 27, 2019
The College of Judges of the Chamber of Judges in Civil Matters of the Court of Appeal of the Transcarpathian Region consisting of:
Chairman: H.H. Sobosloi,
Judge: S.D. Dzhuha, B.P. Kushtan,
Secretary: V.I. Voloshchuk,
has after the hearing of the civil case in the public court session on the appeal of “ZakarpatEuroTrans” GmbH against the decision of the Mukachevo District Court of July 11, 2018 in case No. 303/1530/18 (chairman: L.V. Kurakh) the following
D E C I D E D:
In March 2018, the insurance company UNIQA submitted an appeal against the court’s recognition to enforce the decision of the District Court of Salzburg, Republic of Austria, dated May 23, 2015 in case no. 13CG55 / 13р-21 with regard to the collection of costs in the amount of 17,500 euros, and 3,217 euros, procedural costs, from ZakarpatEuroTrans Ltd., Mukachevo City, Ukraine, EDRPOU code 30015655 (recognition and enforcement of an Austrian court judgment).
It justifies the appeal by the fact that the requests of the applicant, the insurance company UNIQA, have been confirmed with the above-mentioned decision, and the defendant, the “ZakarpatEuroTrans” GmbH, registered in the territory of Ukraine, does not agree with the court decision. The applicant was duly notified of the matter and the possibility of representing his interests in this matter, as evidenced by the minutes of the Mukachevo District Court of January 22, 2014 on the delivery of the notification of participation in the case No. 13CG55 / 13р-21 the representative of the defendant is confirmed.
On May 22, 2018, the representative of the applicant, the insurance company UNIQA, sent the amendment to the application to the address of the court, in which he indicated that the main number of the case, the decision of which the applicant requests to be recognized, is 13CG55 / 13р and it is indicated on the first page of the translation text. Extension no. 13CG55 / 13р-21 was added to this decision, as the court issued the supplementary decision on translation costs in the matter, therefore the applicant has given the main number with the extension -21. The applicant also states that the defendant has been duly notified of the participation in case No. 13CG55 / 13р by the Mukachevo District Court in the context of the negotiation of the mandate of the Austrian court and of the possibility of representing his interests, which is indicated in the minutes of the hearing dated January 22, 2014 about the delivery of the notification of participation in the case No. 13CG55 / 13р.
The specified resolution is to be enforced on the territory of Ukraine since the resolution came into force in the amount of 636 011.90 UAH.
The “ZakarpatEuroTrans” GmbH refused to consent to this court order and filed an appeal requesting that the decision be set aside, as the decision was taken in violation of the norms of procedural and substantive law. In addition, the court did not fully examine the case files with regard to the inconsistency between the amounts of the procedural costs to be collected according to the decision of the Salzburg District Court.
According to resolution no. 13CG55 / 13р of the District Court of Salzburg, Republic of Austria, dated September 9, 2014, which came into force on May 23, 2015, “ZakarpatEuroTrans” GmbH should also transfer the required amount of 17 500 euros to the insurance company UNIQA. Payment of the costs for the services provided and the procedural costs in the amount of EUR 2,948.80. The translation costs according to the resolution of September 9, 2013 in the amount of 165.60 euros and the translation costs according to the resolution of April 11, 2014 in the amount of 102.60 euros were not recognized due to the inadequate justification.
According to Article 462 of the Code of Civil Procedure of Ukraine, the decisions of the foreign court (court of the foreign state, other competent authorities of foreign states competent for negotiating civil matters) are recognized and implemented in Ukraine if their recognition and fulfillment (enforcement) are provided for in the international treaty and the approval of its binding nature has been given by the Supreme Council of Ukraine, or according to the principle of reciprocity.
If the recognition and fulfillment of the decision of the foreign court depends on the principle of reciprocity, it is presumed to exist unless otherwise proven.
According to article 464 of the Code of Civil Procedure of Ukraine, the issue of granting permission to enforce the order of the foreign court is dealt with by the court of the debtor’s domicile or location.
Seat of the legal entity “ZakarpatEuroTrans” Ltd.: Zakarpattia Oblast, Mukachevo district, Kolchyno urban-type settlement, wul. Naberezhna, house 17.
According to Article 81 of the Law of Ukraine “On Private International Law”, the decisions of foreign courts in matters arising from civil, labor, family and commercial law relationships can be subject to final judgments of foreign courts in criminal matters in the part, which concerns the compensation of the inflicted damage and losses, the decisions of the foreign arbitration tribunals and other authorities of the foreign states, which are responsible for the consideration of civil and economic matters, are recognized and fulfilled in Ukraine.
According to the decision of the Regional Court of Salzburg, Republic of Austria, (in case no. 13CG55 / 13р) 17,500 euros and 2,948.80 euros were withdrawn from “ZakarpatEuroTrans” GmbH in favor of UNIQA Österreich Versicherungen AG
The allegations of the debtor that they were not notified about the court’s sitting by the court of Salzburg, Republic of Austria, are irrelevant, as such evidence is invalidated by the materials of order 1.7 / 2014 for the delivery of the documents. These materials contain the minutes of the Mukachevo District Court of January 22, 2014 No. 302/261/13-ц, according to which copies of the documents of the Austrian court in case No. 13CG55 / 13р were handed over to the representative of “ZakarpatEuroTrans” Ltd. And confirmed by the signature. The confirmation of receipt was signed by the representative of “ZakarpatEuroTrans” GmbH – PERSON_3.
As of July 11, 2018, 17,500 euros and 2,948.80 euros correspond to the official exchange rate of the National Bank of Ukraine in amount of 627,779 UAH.
Based on Articles 374, 376, 462-469 of the Code of Civil Procedure of Ukraine, the Judicial College
D E C I D E D:
To partially uphold the appeal of “ZakarpatEuroTrans” GmbH.
To revoke the decision of the District Court of Mukachevo of July 11, 2018 in relation of the authorization to enforcement on the territory of Ukraine of the decision of the Court of Salzburg, Republic of Austria, of May 23, 2015 in the case No. 13CG55 / 13р in the part of the collection of the procedural costs in the amount of 3 217.00 euros and of the authorization for enforcement on the territory of Ukraine of this decision in the amount of the procedural costs of 2 948.80 euros, and the remaining part of the appeal to dismiss.
Generally, to leave the court decision regarding the collection of the main claim in the amount of 17,500.00 euros unchanged and thus to recognize and to allow for the enforcement in Ukraine the Austrian court judgment in case no13CG55 / 13р.
The resolution has been in force since it was adopted.
The decision can be appealed directly to the Supreme Court within thirty days of the full court decision being issued.
The full text of the resolution was completed on January 29, 2019.
Chairman / Signature /
Judge: / Signatures /
According to the original:
Judge of the Court of Appeal
of the Transcarpathian region H.H. Sobosloi
