Oberster Gerichtshof, Urteil vom 02/10/2007 4 Ob 124/07z
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2007:0040OB00124.07Z.1002.000
Date: 2007-10-02
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82007AT1002(02)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff is a collecting company with regards to copyrights. It seeks payment of commissions for the distribution of non recorded sound and image storage media from the defendant parties. According to Austrian copyright law, a person who first puts storage media into circulation is obliged to pay such a commission; a person who puts it in circulation, but is not the first in doing so, is liable as a guarantor and payer. The first defendant is a company having its seat in Luxemburg. It sells blank cassettes, which it offers on websites which can also be accessed in Austria. The second defendant-company operates a warehouse at its Austrian seat, from which it sends cassettes from the first defendant to purchasers in Austria by mail. The plaintiff brought proceedings against both defendants before the Austrian court at the seat of the second defendant seeking payment of commissions for the blank cassettes. It asserted that with regards to the first defendant jurisdiction was established according to Article 6(1) Brussels I Regulation. As the court dismissed the action against both defendants, the plaintiff appealed to the OGH (AT).
The OGH (AT) allows the appeal. It holds that it can be assumed with regards to the first as well as to the second defendant that they put in circulation cassettes within the meaning of the Austrian copyright law. The second defendant's contribution to the distribution was apt in order to establish a claim for commission against it, namely as guarantor and payer. According to the plaintiff's assertions, a deliberate and wilful cooperation is at hand, in which the distribution transactions by the plaintiff and the actual distribution by the second defendant are related to each other and compliment each other. Thereby, the close connection required by Article 6(1) Brussels I Regulation between the actions against both defendants is established.