Oberster Gerichtshof; 2015-01-22; H. M.; Dr. H. L., Dr. A. K.; 2 Ob 222/14g
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2015:0020OB00222.14G.0122.000
Date: 2015-01-22
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82015AT0122(51)_ENG_SUMJURE
JURE summary
JURE summary
An Austrian owner of a horse (the “plaintiff”) sought compensation from two physicians at the animal clinic in Germany (the “defendants”) by a lawsuit. A faulty veterinary treatment by defendants had led subsequently to the necessity of putting her horse to sleep in Austria.
The plaintiff based the Austrian court’s jurisdiction on Article 5(3) of the 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”), in the version valid until 09.01.2015. The damage, the horse’s death, had occurred within the court’s jurisdiction.
The Court of First Instance (Landgericht Welsch) had the service of proceedings delivered along with a request to lodge a defence. Because no response was returned within the time limit, the Court of First Instance gave a judgment by default against the defendants.
The Court of Appeal (Oberlandesgericht Linz) followed the defendants’ appeal. The judgment by default was void. Within the meaning of Article 5(3) of the Brussels I Regulation, the damage’s relevant place of effect is the place where the initial damage occurred only.
Against this, the plaintiff directed her appeal, which is admissible, but not justified.
The Oberster Gerichtshof (“OGH”) declares that an autonomous interpretation of Article 5(3) of the Brussels I Regulation (“in the courts for the place where the harmful event occurred or may occur”) by the Court of Justice of the European Union offers to the plaintiff to select both the place of effect (where the damage became effective) and the place of action (where the action causing the damage occurred).
The plaintiff bases her appeal on the place of effect, which is, however, merely the place where a consequential damage became effective. According to the case law, only the place where the original damage became effective can be considered as the place of effect.
The OGH follows the entire view of the Court of Appeal.
The OGH did not follow the plaintiff’s appeal.