Oberster Gerichtshof, Urteil vom 13/10/2004 9 Ob 110/04y
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2004:0090OB00110.04Y.1013.000
Date: 2004-10-13
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82004AT1013(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The German vendor commenced proceedings against the Austrian buyer before an Austrian court seeking damages for breach of contract. During the proceedings, the parties reached an out of court settlement with regard to the performance of partial deliveries by the German party. The Austrian party made three payments on account, however, it did not receive any deliveries. Therefore, it brought an action before the Austrian court referred to as "counter-claim" seeking the refund of the amount paid. The question arose whether the Austrian court had jurisdiction over the counter-claim of the Austrian party according to Article 6(3) Brussels I Regulation.
The OGH (AT) holds that Article 6(3) Brussels Regulation expressly provides that a counter claim has to arise from "the same contract or facts on which the original claim was based". Another kind of connection between the claim and the counter claim is not sufficient according to the clear wording of the provision. In the present case, the fact that the claim and the counterclaim are not based on the same contract is obvious, as the original claim is based on a sales contract which was concluded a long time ago, while the counterclaim is based on a settlement reached during the first proceeding. Furthermore, it cannot be argued that the two claims are based on the same facts. When the court was seised with the first proceeding, the facts underlying the counterclaim had not yet arisen. Thus, the counterclaim cannot be brought in the jurisdiction provided by Article 6(3) Brussels I Regulation.