Oberster Gerichtshof, Urteil vom 19/11/2008 3 Ob 182/08y
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2008:RS0124294
Date: 2008-11-19
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82008AT1119(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff claims to be the sole heir to his deceased father's estate. The defendant was a friend of the plaintiff's father. Both parties are domiciled in Italy. The plaintiff brought an action against the defendant before the Landesgericht of Klagenfurt (AT). The plaintiff stated that his father maintained an investment portfolio and different accounts at an Austrian bank. The probate court with jurisdiction ruled the plaintiff was the sole heir. According to the plaintiff, the defendant liquidated the investment portfolio and withdrew the assets from the accounts without authorisation. By these acts the defendant deprived the plaintiff, as lawful heir, of these assets. The court's jurisdiction is based on Article 5(3) Brussels I Regulation. The illegal withdrawals occurred within the territory of the court before which the defendant sought redress. The defendant contested the international jurisdiction of the court, the plaintiff having raised a claim of unjust enrichment. The lower courts rejected the claim. The defendant was authorised by the father to make transfers from the accounts. It follows that the matter concerns a contractual legal relationship for which there is no basis of jurisdiction. The plaintiff appealed to the Oberste Gerichtshof (OGH) (AT).
The OGH overrules and remands the decision. In determining the existence of international jurisdiction, the allegations in the plaintiff's complaint must be considered. The plaintiff bases his complaint on a statement of the facts of the case which, if true, would establish a punishable breach of trust. Thus, the plaintiff has demonstrated the defendant's tortious liability. So-called doubly relevant facts are relevant to establish jurisdiction in addition to a well-founded claim. When doubly relevant facts are presented conclusively with the plaintiff's complaint, jurisdiction has been sufficiently established. As a consequence, it is to be assumed that the Austrian courts have jurisdiction.