Oberster Gerichtshof, Beschluß vom 08/09/2009 4 Ob 90/09b
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2009:RS0125283
Date: 2009-09-08
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82009AT0908(01)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The claimants sought licensing fees from the defendant before the Handelsgericht of Vienna (AT). Furthermore, they sought an order forcing the defendant to disclose the total number of CDs and DVDs sold and to pay a further sum in this respect. The claims were based upon a licensing agreement and an infringement of the claimants' copyright. Jurisdiction was based upon Article 5(1) and (3) Brussels I Regulation. The Oberste Gerichtshof (AT) referred to the ECJ within the context of an appeal of the claimant for a ruling on the interpretation of Article 5(1) Brussels I Regulation.
The Oberste Gerichtshof (AT) dismisses the claimant's appeal. According to the ECJ's preliminary ruling, licensing agreements are not contracts for the provision of services within the meaning of Article 5(1)(b) Brussels I Regulation. Jurisdiction over such actions must be determined according to Article 5(1)(a) Brussels I Regulation. Thereby, the principles found in the ECJ's rulings on Article 5(1) Brussels Convention must be consulted. The place of performance of the obligation whose non-performance is the basis of the action in question is determinative. The principles underlying the ruling C-106/95 (MSG/Les Gravières Rhénanes) are not infringed if the statutory place of performance according to § 905 ABGB (Austrian Civil Code) establishes the jurisdiction of Article 5(1)(a) Brussels I Regulation. By fixing the place of performance at the domicile of the debtor, the aim implied in Article 5(1) Brussels I Regulation, that of factual and evidentiary proximity, is respected, because the "responsibility" of the debtor is then determined by the courts for the place at which he acted.