Oberster Gerichtshof; 2015-08-31; E. K.; H.; 6 Ob 122/15g
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2015:0060OB00122.15G.0831.000
Date: 2015-08-31
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82015AT0831(51)_ENG_SUMJURE
JURE summary
JURE summary
An Austrian natural person from Rattenberg (the “plaintiff”) sued the Member State Greece (the “defendant”) in the Landesgericht Wien (regional court Vienna) for payment due to non-fulfilment of the promise of payment. In a commission-based transaction, via his custodian bank, the plaintiff purchased government bonds (bearer securities), issued by the defendant, which granted him the right to amortisation of capital at maturity and punctual payment of interest according to the bond terms and conditions. Due to the defendant’s financial problems, the defendant has enforced a conversion of their bonds to those with worse conditions: less than 100% of nominal repaid at maturity, lower interest rate and repayment at a later date. The defendant has completed an unauthorized forced conversion, intentionally and illegally.
International jurisdiction is clear from Article 5(3) (now Article 7(2)) of Council Regulation (EC) No. 44/2001 of 22. December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters ("Brussels I Regulation”): A person domiciled in a Member State may, in another Member State, be sued in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur. When the place where the harm occurred and the place of fulfilment fall apart with a tortious damage, then the person has the choice between two places. The court was called that is competent for the place where the harmful event had occurred.
Alternatively, Article 17 and following of the Brussels I Regulation are to be applied: jurisdiction over consumer contracts, if the plaintiff is a consumer and the defendant is an entrepreneur.
The Court of First Instance (Landesgericht Wien) rejected the action in limine, i. e. by ruling without previous hearing or taking of evidence. It explained that, while the plaintiff asserted the defendant’s intervention in his ownership was, in his view, by an unlawful piece of legislation, the defendant, being a Member State, had immunity and thus domestic jurisdiction did not exist. Consequently, jurisdiction within the meaning of Article 5 of the Brussels I Regulation is not applicable.
The Court of First Instance has not accepted the jurisdiction within the meaning Article 18 of the Brussels I Regulation. The action could be brought before a court in whose territory contract partner have their residence or in the court of the place where the consumer is domiciled. As the plaintiff’s residence is in Rattenberg and not in Vienna, the Court of First Instance could not, but reject the action in limine according to the case-law of the Court of Justice of the European Union (the “ECJ”). Otherwise the plaintiff could choose the place of jurisdiction within Austria freely, which was contrary to the regulation authority’s intent.
The Oberlandesgericht Wien (appeals court) confirmed the Court of First Instance decision. The offence jurisdiction (Article 5(3) of the Brussels I Regulation) is not available for the action on compliance with the terms and conditions or damages in case of non-compliance. The plaintiff’s argumentation was clear in that his damage occurred at the place of the custodian bank within the jurisdiction of the court where the action was brought only. That he wants to use the offence jurisdiction as reasoning for the Court of First Instance competence does not result from the plaintiff’s arguments.
In his appeal, the plaintiff had not defeated the reasoning of Court of First Instance of the in-limine rejection in relation to jurisdiction of the courts in consumer contracts.
The Oberster Gerichtshof (Supreme Court of Justice, hereinafter the “Supreme Court”) has found that the plaintiff’s appeal was admissible and entitled as well.
The plaintiff relies on Article 7(2) of the Brussels I Regulation. The explicit quotation of the determination of the jurisdiction, as both previous courts say, is unnecessary. It is absolutely sufficient, if the plaintiff submits the underlying facts.
Actually, the plaintiff made a claim to comply with the bond terms and conditions or damages for non-compliance. Thus, specifically he submits a claim to fulfilment of the payment promise of the defendant Member State as bond debtor. A proper contractual obligation is created between the applicant (holder of securities, creditor) and the state (issuer, debtor). In the decision, the Supreme Court suggests further that there may be no doubt that the promise of payment from a bearer bond is a voluntary legal obligation of the debtor and a contractual claim within the meaning of Article 7(1) of the New Brussels I Regulation. Hence, jurisdiction is given by the Brussels I Regulation.
As with consumer contracts of Article 18 of the New Brussels I Regulation, Article 7 of the New Brussels I Regulation regulates not only the international, but also the territorial jurisdiction.
With damage claims according to Article 7(2) of the Brussels I Regulation, the place of the harmful event within the meaning of the place of fulfilment is where the investment account is located. Although, this does not mean the place where the account is held, but where the investment was made (see 3 Ob 14/12y). This is confirmed by ECJ’s decision (case C-375/13, Kolassa, Rz 57): Under Article 5(3) of the Brussels I Regulation, those courts that have jurisdiction at the plaintiff’s domicile are competent, if the claimed damage was realized on the plaintiff’s bank account at a bank within their jurisdiction.
Even if one had the opinion that the territorial jurisdiction was given elsewhere, nothing would change from this as the court where action was brought subsequently will become competent outside the exclusive jurisdiction of Article 24 of the New Brussels I Regulation through the defendant’s entering appearance under Article 26 of the New Brussels I Regulation. For this reason, the court is to deliver the action even if it takes the view of not being competent in limine litis. An instant in-limine rejection of the complaint cannot be considered. Rather the defendant must be given the opportunity to enter appearance before the court (even if it is not competent).
The Supreme Court granted the plaintiff’s appeal and annulled the Court's of First Instance and the appeals court’s decisions. The Court of First Instance should continue the action and refrain from the used reason of rejection.