OGH; 2018-10-23; 4 Ob 185/18m
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2018:0040OB00185.18M.1023.000
Date: 2018-10-23
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82018AT1023(51)_ENG_SUMJURE
JURE summary
JURE summary
A natural person residing in Vienna (hereinafter ‘the plaintiff’) requested payment of a sum of money (alternatively the determination of the defendant’s liability for damages) from a bank based in the United Kingdom with a branch in Frankfurt am Main (hereinafter ‘the defendant’).
The plaintiff has invested in a certificate through the secondary market in Austria, the issuer of which is the defendant. However, it was a large-scale pyramid scheme and the investors' money was lost for large parts and the certificate was worthless.
The plaintiff justifies the court’s international jurisdiction by Article 15 and Article 5(3) of the Brussels I Regulation (1).
The Handelsgericht Wien (hereinafter ‘the Court of First Instance’) rejected the claim for lack of jurisdiction. The damage occurred in Graz, where the plaintiff obtained her certificate through a depot and settlement account.
The Oberlandesgericht Wien (hereinafter ‘the Court of Appeal’) did not comply with the plaintiff’s appeal. According to Article 5(1)(a) of the Brussels I Regulation, the place of performance for money debts lies at the headquarters of the defendant’s branch in Frankfurt am Main. The promise of payment from an owner’s bond is a voluntary legal obligation on the part of the debtor and therefore a contractual entitlement.
In the appeal on points of law, filed with the Oberster Gerichtshof der Republik Österreich (hereinafter ‘the Supreme Court’), the plaintiff asserts that the place of performance from the contractual claims lies in Austria. These claims should be separated from the claims for damages from prospectus liability made at the same time.
The appeal on points of law is admissible and partially justified.
As the Supreme Court points out, the jurisdiction of the Court of First Instance must be assessed with regard to contractual and to tortious claims.
The jurisdiction for the plaintiff’s contractual claims is determined by the place of performance (international jurisdiction) in accordance with Article 5(1)(a) of the Brussels I Regulation. No place of performance agreement has been concluded between the plaintiff and the defendant and therefore the place of performance must be determined in accordance with substantive law. The plaintiff’s argument that the payments were made from the bond to the custodian bank in Graz (Austria) and thus the place of performance was domestically located is not correct. Several subjects based outside Austria were involved in the handling of the transaction and in such cases, as the Court of Justice of the European Union (hereinafter ‘the CJEU’) emphasizes (2), the plaintiff has always been able to bring a claim before the court at the defendant's residence.
As far as the tortious claims (prospectus liability) are concerned, in principle, the person must be sued in the court at their residence (Article 2(1) of the Brussels I Regulation). However, there are numerous decisions of the CJEU concerning investor matters (3) which justify that the plaintiff may also sue at the place where harm arose if the damage has materialized directly in the plaintiff’s bank account.
That is why the Supreme Court submitted questions for a preliminary judgment to the CJEU. In the judgment (4), the CJEU replies that, again, the materialization of the damage directly on the bank account justifies jurisdiction if specific circumstances of the main proceedings are fulfilled. These include: an affected bank account in Austria, the acquisition of the certificate in Austria, the notification of the prospectus by the Austrian Kontrollbank. Thus, the Court of First Instance has international jurisdiction for the claims derived from a tort (Article 5(3) of the Brussels I Regulation).
The Supreme Court rejected the plaintiff’s appeal on points of law with regard to the contractual claims. With regard to the tortious claims, the decisions of the previous instances must be amended and the Court of First Instance will continue the proceedings.
(1) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Judgment of the Court of 27 September 1988, Athanasios Kalfelis v Bankhaus Schröder, Münchmeyer, Hengst and Co. and others, C-189/87, ECLI:EU:C:1988:459.
Judgment of the Court of 11 October 2007, Freeport plc v Olle Arnoldsson, C-98/06, ECLI:EU:C:2007:595.
(3) Judgment of the Court of 28 January 2015, Harald Kolassa v Barclays Bank plc, C-375/13 ECLI:EU:C:2015:37.
(4) Judgment of the Court of 12 September 2018, Helga Löber v Barclays Bank PLC, C-304/17, ECLI:EU:C:2018:701.