Oberster Gerichtshof, Urteil vom 19/05/2009 3 Ob 54/09a
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2009:0030OB00054.09A.0519.000
Date: 2009-05-19
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82009AT0519(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The claimant brought an action for damages before the Handelsgericht of Vienna (AT) against the defendant due to the breach of a cooperation agreement concluded between the parties. Part of the cooperation had been the establishment of a joint company with its seat in Israel. In order to establish jurisdiction, the claimant invoked a jurisdiction agreement in favour of the courts in Vienna. The OLG of Vienna (AT) held at second instance that the Austrian courts had jurisdiction over the matter and ruled on the merits of the dispute. In an appeal on a point of law to the OGH (AT), the defendant alleged that in truth the claimant's intent with regard to the action concerned the division of the proceeds upon liquidation of the since liquidated Israeli company. In this respect, pursuant to Article 22(2) Brussels I Regulation, the courts at the seat of the company have exclusive international jurisdiction.
The OGH dismisses the appeal. The questions of law raised by the defendant are without relevance to the decision on jurisdiction. In deciding upon jurisdiction, in principle only the information provided by the claimant in the action is determinative. According to the information provided by the claimant in the action, none of the claims concern matters for which the exclusive jurisdiction of Article 22(2) would come into consideration. On the other hand, objections raised by the opposing party against jurisdiction are only able to attack the jurisdiction of the court to the extent to which they do not also attack the merits of the action. The claim of the defendant that in truth the factual situation meant that the courts of another State had exclusive jurisdiction is therefore not able to put in question jurisdiction over the action. Obiter the OGH refers to the fact that, with respect to a company with its seat in a third State such as Israel, Article 22(2) may only ever be applied by analogy.