Oberster Gerichtshof; 2018-03-22; 4 Ob 55/18v
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2018:0040OB00055.18V.0322.000
Date: 2018-03-22
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Austria

82018AT0322(51)_ENG_SUMJURE
JURE summary
JURE summary
By a negative declaratory judgment, a limited liability company (GmbH) domiciled in Austria (hereinafter ‘the plaintiff’) sought a declaration that its chocolate goods did not infringe the rights of a public limited company domiciled in Switzerland (hereinafter ‘the defendant’) on the market in Great Britain. By means of a cease and desist letter by his lawyer, the defendant requested the plaintiff to refrain from offering chocolate reindeer in Great Britain, similar to the gold reindeer which he manufactured. If necessary, the defendant wanted to protect his rights in Great Britain by means of a ‘passing off’.
Since the unjustified injunction has an effect in Austria given the possible consequences of the possible dispute also endangering transactions in Austria, the plaintiff bases his jurisdiction on Article 7(2) of the Brussels I Regulation (recast) (1).
The defendant raised an objection of lack of international jurisdiction since the reasons for the injunction relate only to Great Britain, and because the plaintiff did not suffer any damages in Austria as a result of his lawyer's cease and desist letter.
The Court of First Instance dismissed the action for lack of international jurisdiction.
The Oberlandesgericht Wien (hereinafter ‘the Court of Appeal’) confirmed the decision of the Court of First Instance and dismissed the appeal for lack of a significant legal question.
As the Oberste Gerichtshof der Republik Österreich (hereinafter ‘the Supreme Court’) states in the decision, the plaintiff did not raise any significant legal issue in the extraordinary appeal procedure.
Because of the defendant's domicile, Article 5(3) of the new Lugano Convention (2) applies, which content is identical to Article 7(2) of the Brussels I Regulation (recast). For the purpose of determining jurisdiction, the relevant place is the place where the harmful event occurred (place where the harmful event occurred) or, if the plaintiff so chooses, the place where the cause of the damage occurred (place of performance) if these two places fall apart. The Court of Justice of the European Union stated that this rule also applies in the event of a negative declaratory claim and that the plaintiff has the option to sue in one of these places (3).
On the other hand, a court may not declare jurisdiction if it cannot establish any of the two.
Both the alleged victim (the defendant in the ‘passing off action’ threatened by him) and the potential debtor (the plaintiff) have the option to bring an action before the court of the place of performance or the place where the harmful event occurred. It is therefore necessary to examine where the injuring party acted causally, or where the injured party's loss occurred.
The lower courts rightly dismissed, in accordance with the case law, that both the place of action and the place where the harmful event occurred, lie in Austria.
It can also be deduced from the decision of the Court of Justice of the European Union that a negative declaratory action is not aimed at asserting its own damage. Regard is given to the alleged damage to the defendant.
The Supreme Court dismissed the plaintiff's appeal in the absence of a significant legal question.
(1) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(3) Judgment of the Court of Justice of 25 October 2012, Folien Fischer AG and Fofitec AG v Ritrama SpA., C-133/11, ECLI:EU:C:2012:664, paragraph 55.