Oberster Gerichtshof, Beschluß vom 21/10/1999 2 Ob 288/99p
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:1999:RS0112504
Date: 1999-10-21
Subject matter: Lugano Convention
Origin: Austria

81999AT1021(02)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The parties are divorced spouses. During their marriage, they lived together in Austria. Meanwhile, the defendant lives in Italy. The plaintiff is domiciled in Austria. During their marriage, the parties had taken up a loan with the savings bank at their domicile. According to the loan terms, the repayment of the loan had to be performed at the premises of the branch of the savings bank which administered the accounts. In the divorce proceedings, the defendant accepted the obligation to repay the loan by divorce agreement. The plaintiff was liable as guarantor. The savings bank sought payment from the plaintiff. The latter commenced proceedings against the defendant before the court at his domicile seeking reimbursement. He based the jurisdiction of the court on the fact that the claim of the savings bank as well as the agreement on the place of performance had passed over to him. Thus, he brought proceedings before the court of the place of contractual performance according to Article 5(1) Lugano Convention. Upon the defendant's challenge to jurisdiction, the appellate court dismissed the action for lack of jurisdiction. The plaintiff appealed to the OGH (AT).
The OGH (AT) affirms the judgment by the appellate court and dismisses the appeal. It holds that the Lugano Convention is not applicable. The proceedings were instituted after the entry into force of the Lugano Convention in Austria as well as in Italy. However, the plaintiff bases his claim on a divorce agreement. Matrimonial relationships, which, according to Article 1(2) (1) Lugano Convention, are excluded from the scope of the Convention, also include such proprietary relationships which arise from the dissolution of marriage, inter alia, stipulations made in a divorce agreement. Thus, the Austrian rules of civil procedure have to be applied. The jurisdiction of the Austrian courts however cannot be established according to these rules.