OGH; 2023-06-28; 9 ObA 11/23t
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2023:009OBA00011.23T.0628.000
Date: 2023-06-28
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82023AT0628(51)_ENG_SUMJURE
JURE summary
JURE summary
A pilot domiciled in Vienna (hereinafter ‘the plaintiff’) filed an action against an airline domiciled in Morocco (hereinafter ‘the defendant’) requesting to be provided with the name of the insurance company with whom, through the defendant as an intermediary, an insurance agreement regarding the unfitness of work of the pilot was made, and further to be issued the acknowledgement that the defendant was liable for the damages incurred by the pilot due to the fact that insurance company did not pay out an insurance claim.
The respective insurance premium had been regularly deducted from the plaintiff's wage. When the plaintiff applied for the payment of the insurance claim, the defendant informed him that the insurance company rejected such payment.
After the defendant failed to attend the hearing, The Arbeits- und Sozialgericht Wien (hereinafter ‘the Court of First Instance’) issued a default judgment upholding the action.
Based on an appeal of the defendant, the Oberlandesgericht Wien (hereinafter ‘the Court of Appeal’) annulled the default judgment of the Court of First Instance and dismissed the action stating that the defendant did not receive the documents initiating the proceedings in his language nor with an adequate translation, a fact which was contrary to the principle of a fair trial. However, the objection raised by the defendant regarding the lack of domestic jurisdiction was generally justified. No connection existed between the claim being asserted and the employment relationship, which would justify the jurisdiction of the courts in Vienna for employment-related matters according to the choice of the employee.
The revision filed by the plaintiff with the Oberstes Gerichtshof (hereinafter ‘the Supreme Court’) was found admissible and partially justified.
The Court of Appeal was correct in stating that the fact that the action had not been served in the official language of the receiving land (Morocco) or without a translation violated the right of the defendant to be heard. To this extent, the revision of the plaintiff could not be upheld.
Contrary to the opinion plaintiff’s opinion, the seat of the defendant in Morocco did not exclude the applicability of the Brussels I Regulation (recast) (1), as this regulation also provided for the assertion of claims based on action in employment matters against persons having their seat outside of the European Union. The parties were in disagreement about whether a contract of employment was made under the Brussels I Regulation (recast). Primarily, it was necessary to verify the international jurisdiction under the Brussels I Regulation (recast). The Court of Appeal was wrong to have found that the claim of the plaintiff was not connected to his employment. The claim was connected to the employer’s duty of care for its employees, who, through third parties, organised additional benefits for its employees.
The Supreme Court annulled the decision of the Court of Appeal and ordered the Court of First Instance to deal with the objection of the lack of international jurisdiction.
(1) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast).