Oberster Gerichtshof, Urteil vom 24/04/2003 2 Ob 75/03y
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2003:RS0117505
Date: 2003-04-24
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82003AT0424(02)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff brought an action for damages before the Austrian courts against the defendant, having its seat in Germany. The defendant challenged the international jurisdiction of the court seised. The court of first instance dismissed the action for being unfounded without considering whether it had jurisdiction. The plaintiff appealed. On appeal, the defendant sustained its challenge of jurisdiction only for the case that jurisdiction was in fact examined. Nonetheless, the appellate court overruled the first instance judgment for lack of jurisdiction.
The OGH (AT) firstly states that the defendant party has to sustain its challenge of international jurisdiction during the complete proceedings. Otherwise, jurisdiction could be established according to Article 18 Brussels Convention by an entry of appearance without contesting jurisdiction. This also applies to appellate proceedings if jurisdiction was challenged at first, but was no longer challenged on appeal. The court finds that in the present case the defendant entered an appearance in the appellate proceedings and had only challenged jurisdiction only on the procedural condition that jurisdiction was examined for the first time. However, as the court of first instance – impliedly – determined its jurisdiction, that condition did not take effect. Thus, according to Article 18 Brussels Convention, the appellate court could no longer determine a possible lack of jurisdiction.